Citing Unpublished Opinions

in Federal Appeals

Robert Timothy Reagan

Meghan Dunn, David Guth, Sean Harding,

Andrea Henson-Armstrong, Laural Hooper, Marie Leary,

Angelia Levy, Jennifer Marsh, Robert Niemic

Federal Judicial Center

2005

This Federal Judicial Center publication was undertaken in furtherance of

the Center’s statutory mission to conduct and stimulate research and development for the improvement of judicial administration. The views expressed are those of the authors and not necessarily those of the Federal

Judicial Center.
This page left blank intentionally to facilitate two-sided printing
iii

Contents

I. Introduction 1

II. Survey of Judges 6

A. Preparing Unpublished Opinions 6

1. If Citation Were Prohibited (Discouraging and Permissive

Circuits) 7

a. Length of Unpublished Opinions 7

b. Drafting Time 7

2. If Citation Were Allowed Only Sometimes (Permissive

Circuits) 8

a. Length of Unpublished Opinions 8

b. Drafting Time 9

3. If Citation Were Always Allowed 9

a. Number of Unpublished Opinions (Discouraging 

Circuits) 9

b. Length of Unpublished Opinions (Restrictive and

Discouraging Circuits) 10

c. Drafting Time (Restrictive and Discouraging Circuits) 11

d. Problems (Restrictive Circuits) 12

B. Work of Chambers Reviewing Briefs (Discouraging and Permissive

Circuits) 13

1. Work 13

2. Helpfulness 14

3. Inconsistency 14

C. Effect of New Local Rules (A Discouraging Circuit—the First

Circuit; and a Permissive Circuit—the District of Columbia

Circuit) 15

1. Frequency of Citation 15

2. Drafting Time 15

3. Work 16

III. Survey of Attorneys 17

A. Citing Unpublished Opinions in Briefs 17

1. Wanted to Cite an Unpublished Opinion 17

a. Opinions by this Circuit 17

b. Opinions by Other Courts 18

2. Would Have Cited an Unpublished Opinion 18

a. Opinions by this Circuit 18

b. Opinions by Other Courts 18

B. The Impact of the Proposed Rule 19

1. Burden 19

2. Open-Ended Question 20
Citing Unpublished Opinions in Federal Appeals

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IV. Survey of Case Files 22

A. Opinions 22

B. Citations 26

V. Exhibits 30

A. Judge Survey Response Rates 31

B. Length of Unpublished Opinions If Citation Was Prohibited 32

C. Time Preparing Unpublished Opinions If Citation Was Prohibited 33

D. Length of Unpublished Opinions If Citation Was Allowed Only

Sometimes 34

E. Time Preparing Unpublished Opinions If Citation Was Allowed

Only Sometimes 35

F. Number of Unpublished Opinions If Citation Was Freely 

Permitted 36

G. Length of Unpublished Opinions If Citation Was Freely

Permitted 37

H. Time Preparing Unpublished Opinions If Citation Was Freely 

Permitted 38

I. Problems with Proposed Rule 39

J. Unpublished Citation’s Additional Work 40

K. Unpublished Citation’s Helpfulness 41

L. Unpublished Citation’s Inconsistency 42

M. Frequency of Citation to Unpublished Opinions After Local Rule

Change 43

N. Time Preparing Unpublished Opinions After Local Rule Change 44

O. Work After Local Rule Change 45

P. Attorney Survey Response Rates 46

Q. Wanted to Cite This Court’s Unpublished Opinion 47

R. Wanted to Cite Another Court’s Unpublished Opinion 48

S. Would Have Cited This Court’s Unpublished Opinion 49

T. Would Have Cited Another Court’s Unpublished Opinion 50

U. Impact on Work of New Rule 51

V. Attitude Toward Proposed Rule 52

W. Cases Filed in 2002 53

X. Dispositions (with Opinion Rates and Publication Rates) 54

Y. Publication of Opinions in Closed Cases with Opinions 55

Z. Very Short, Short, and Other Unpublished Opinions 56

AA. Percentage of Unpublished Opinions That Are Very Short 57

BB. Appeals with Counseled Briefs 58

CC. Authorities Cited 59

DD. Briefed Cases with Citations to Unrelated Unpublished

Opinions 60

EE. Briefed Cases with Citations to Unrelated Unpublished Opinions

by the Deciding Court 61
Citing Unpublished Opinions in Federal Appeals

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VI. Appendices 63

Appendix A: Judges’ Predictions of Problems Posed by Citations to

Unpublished Opinions 65

1. Second Circuit 65

a. Unpublished Opinions Would Become Shorter 65

b. Unpublished Opinions Are Not Helpful in Other Cases 66

c. Increased Workload 67

d. Disposition Time 68

e. Quality of Unpublished Opinions 68

f. Other Thoughts 68

2. Seventh Circuit 68

a. Unpublished Opinions Would Become Shorter 68

b. Unpublished Opinions Are Not Helpful in Other Cases 69

c. Quality of Unpublished Opinions and the Slippery Slope to

Precedent 70

d. Increased Workload 70

3. Ninth Circuit 70

a. Increased Workload 70

b. Unpublished Opinions Would Become Shorter 72

c. Quality of Unpublished Opinions 73

d. Disposition Time 73

e. Unpublished Opinions Are Not Helpful in Other Cases 74

f. Slippery Slope to Precedent 74

g. Other Thoughts 74

4. Federal Circuit 74

a. Quality of Unpublished Opinions 75

b. Unpublished Opinions Would Become Shorter 75

c. Slippery Slope to Precedent 76

d. Increased Workload 76

e. Government Advantage 76

Appendix B: Attorneys’ Thoughts on the Impact of the Proposed

Rule 77

1. The Availability of Additional Authority 77

a. More Authority 78

b. Bias 87

c. More Work 87

d. Already Reviewed 89

2. The Usefulness of Unpublished Opinions 91

a. Strategy 91

b. Not Precedent 93

c. Not Useful 97

d. Poor Quality 99

e. Good Quality 102
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3. Access to Unpublished Opinions 102

a. Accessible 102

b. Less Accessible 104

4. Impact on the Court 106

a. More Consistency 106

b. Less Consistency 109

c. Higher Quality Opinions 109

d. Shorter Opinions 111

e. Longer Opinions 113

f. Delay 114

5. Broad Policy Issues 114

a. Accountability 115

b. Blurred Distinction 116

c. Should Be Precedent 118

6. Other Comments 120

a. Other Supportive Comments 120

b. Other Neutral Comments 122

c. Other Comments in Opposition 123

Appendix C: Citations to Unpublished Opinions in Federal Appellate

Case Files 125

1. First Circuit 126

2. Second Circuit 140

3. Third Circuit 155

4. Fourth Circuit 171

5. Fifth Circuit 180

6. Sixth Circuit 190

7. Seventh Circuit 209

8. Eighth Circuit 219

9. Ninth Circuit 233

10. Tenth Circuit 243

11. Eleventh Circuit 262

12. District of Columbia Circuit 273

13. Federal Circuit 292
1

I. Introduction

The Appellate Rules Advisory Committee1 has proposed a new Federal

Rule of Appellate Procedure 32.1, which would permit attorneys and

courts in federal appeals in all circuits to cite unpublished opinions.

2 Currently, by local rules, courts in four circuits (the Second,

3 Seventh,4 Ninth,5

and Federal

6 Circuits) forbid citation to their unpublished opinions in unrelated cases; we call these “restrictive” circuits. Courts in six circuits (the

First,

7 Fourth,8 Sixth,9 Eighth,10 Tenth,11 and Eleventh12 Circuits) discourage

citation to their unpublished opinions, but permit it when there is no published opinion on point; we call these “discouraging” circuits. Courts in the

 

1. Hon. Samuel Alito, chair. We are grateful to the chair and the committee for their

guidance and cooperation.

2. Below is the text of the proposed rule as adopted by the Appellate Rules Advisory

Committee at its April 2005 meeting and approved by the Standing Committee on Rules of

Practice and Procedure (Hon. David Levi, chair) at its June 2005 meeting:

Rule 32.1 Citing Judicial Dispositions

(a) Citation Permitted. A court may not prohibit or restrict the citation of

federal judicial opinions, orders, judgments, or other written dispositions that

have been designated as “unpublished,” “not for publication,” “nonprecedential,” “not precedent,” or the like.

(b) Copies Required. If a party cites a federal judicial opinion, order,

judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion,

order, judgment, or disposition with the brief or other paper in which it is

cited.

At its September 2005 meeting, the Judicial Conference approved the proposed rule with

an amendment that would apply it only to opinions issued in 2007 or later. The next body to

act on the proposal is the Supreme Court of the United States, which is expected to act by

May 2006. See 28 U.S.C. § 2074. If the Supreme Court approves the proposed rule and Congress fails to act, the rule will become effective December 1, 2006. Id.

The rule originated as a proposal by the Department of Justice. See, e.g, Niketh Velamoor, Note, Proposed Federal Rule of Appellate Procedure 32.1 to Require That Circuits Allow

Citation to Unpublished Opinions, 41 Harv. J. on Legis. 561 (2004); see also Stephen B. Burbank,

The Politics of the Federal Judiciary: Tiered Appellate Decisionmaking, 89 Judicature 20 (2005)

(discussing the recent history of the rule proposal).

3. 2d Cir. R. § 0.23.

4. 7th Cir. R. 53(b)(2)(iv).

5. 9th Cir. R. 36–3(b).

6. Fed. Cir. R. 47.6(b).

7. 1st Cir. R. 32.3(a)(2), 36(c).

8. 4th Cir. R. 36(c).

9. 6th Cir. R. 28(g).

10. 8th Cir. R. 28A(i).

11. 10th Cir. R. 36.3(B).

12. 11th Cir. I.O.P. 36.5.
Citing Unpublished Opinions in Federal Appeals

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remaining three circuits (the Third,

13 Fifth,14 and District of Columbia15 Circuits) more freely permit citation to unpublished opinions; we call these

“permissive” circuits.

16

The issue of whether unpublished opinions could be cited arose in the

1970s when federal courts of appeals developed plans for selective publication of their opinions.

17 At its March 1964 meeting, the Judicial Conference

of the United States resolved “That the judges of the courts of appeals and

the district courts authorize the publication of only those opinions which

are of general precedential value and that opinions authorized to be published be succinct.”18

Over the next 10 years, individual circuits developed publication

plans,

19 and many of the circuits adopted rules stating whether unpub-

 

13. E.g., In re Mays, 256 B.R. 555, 558 (D.N.J. 2000); Equal Employment Opportunity

Comm’n v. Watson Standard Co., 119 F.R.D. 632 (W.D. Pa. 1988). But see 3d Cir. I.O.P. 5.7

(“The court by tradition does not cite to its not precedential opinions as authority. Such

opinions are not regarded as precedents that bind the court because they do not circulate to

the full court before filing.”).

14. 5th Cir. R. 47.5.4.

15. D.C. Cir. R. 28(c), 36(c)(2).

16. In 2000, Federal Judicial Center staff members classified restrictive circuits as having

“strict noncitation rules,” discouraging circuits as having “loose noncitation rules,” and

permissive circuits as “other.” Judith A. McKenna, Laural L. Hooper & Mary Clark, Case

Management Procedures in the Federal Courts of Appeals 35 tbl. 19 (2000). At that time, the

First and District of Columbia Circuits were restrictive circuits. In 2004, Dean Martha

Dragich Pearson classified restrictive circuits as not allowing citations to their unpublished

opinions, discouraging circuits as disfavoring such citations, and permissive circuits as allowing them. Martha Dragich Pearson, Citation of Unpublished Opinions as Precedent, 55 Hastings L.J. 1235, 1308 app. A (2004). (Curiously, she classified the Eighth Circuit as a circuit

not allowing citations to its unpublished opinions although her table states that they are

“allowed for preclusive [e]ffect or if persuasive and no published opinion available.” Id.)

Professor Stephen Barnett prefers a two-group classification scheme: circuits allowing citation to their unpublished opinions (discouraging and permissive circuits) and circuits

forbidding such citation (restrictive circuits). E.g., Stephen R. Barnett, No-Citation Rules Under Siege: A Battlefield Report and Analysis, 5 J. App. Prac. & Process 473, 474–75 (2003).

17. “Limited publication has been considered by the federal judicial establishment since

the 1940’s.” William L. Reynolds & William M. Richman, The Non-Precedential Precedent—

Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L.

Rev. 1167, 1169 (1978). Limited publication of opinions is one of several tools adopted by

courts to more efficiently handle growing caseloads. E.g., Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 78 Stan. L. Rev. 1435, 1442–65,

1483–1504 (2004).

18. Reports of the Proceedings of the Judicial Conference of the United States 11 (1964).

See also Donna Stienstra, Unpublished Dispositions: Problems of Access and Use in the

Courts of Appeals 6 (Federal Judicial Center 1985), reprinted in Managing Appeals in Federal

Courts (Michael Tonry & Robert A. Katzmann eds., Federal Judicial Center 1988) at 497, 501;

Reynolds & Richman, supra note 17, at 1169 n.17.

19. Reynolds & Richman, supra note 17, at 1169–71; Michael Hannon, A Closer Look at

Unpublished Opinions in the United States Courts of Appeals, 3 J. App. Prac. & Process 199, 207–
Citing Unpublished Opinions in Federal Appeals

3

lished opinions could be cited. Seven circuits adopted restrictive rules,

20

one circuit adopted a discouraging rule,

21 three circuits were permissive,22

 

08 (2001); Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals, 54 Vand. L. Rev. 69, 75–76 (2001).

20. On April 1, 1970, the First Circuit adopted a rule declaring that some opinions

would not be published (Rule 8), and on November 4, 1971, the clerk issued a memorandum prohibiting the citation of unpublished opinions in unrelated cases. The prohibition

became a local rule January 1, 1973 (Rule 14). Brochu v. Ortho Pharmaceutical Corp, 642

F.2d 652, 658 n.12 (1st Cir. 1981); Reynolds & Richman, supra note 17, at 1180.

On October 31, 1973, the Second Circuit adopted a rule prohibiting the citation of unpublished opinions in unrelated cases (§ 0.23). United States v. Joly, 493 F.2d 672, 675–76 &

n.6 (2d Cir. 1974); Reynolds & Richman, supra note 17, at 1180, 1207.

On April 11, 1973, the Sixth Circuit adopted a rule stating that unpublished opinions

should never be cited (Rule 11). William L. Reynolds & William M. Richman, Limited Publication in the Fourth and Sixth Circuits, 1979 Duke L.J. 807, 813 (1979).

On February 1, 1973, the Seventh Circuit adopted a rule specifying under what circumstances opinions would be published and prohibiting citation to unpublished opinions in

unrelated cases. United States v. Erving, 388 F. Supp. 1011, 1017 (W.D. Wis. 1975).

On January 11, 1973, the Eighth Circuit adopted as an appendix to its local rules a plan

for the publication of opinions. David Dunn, Note, Unreported Decisions in the United States

Courts of Appeals, 63 Cornell L. Rev. 128, 135 & n.45 (1977). On November 1, 1978, the circuit

amended its plan for the publication of opinions to prohibit citation to unpublished opinions in unrelated cases. Reynolds & Richman, supra note 17, at 1180.

On March 1, 1973, the Ninth Circuit adopted a rule distinguishing published opinions

from unpublished memorandum dispositions (Rule 21) and prohibiting citation to memorandum dispositions in unrelated cases (Rule 21(c)). United States v. Allard, 600 F.2d 1301,

1306 n.5 (9th Cir. 1979); Reynolds & Richman, supra note 17, at 1180.

On April 19, 1972, the District of Columbia Circuit adopted a rule prohibiting citation to

unpublished opinions in unrelated cases (Rule 8(f)). Carothers v. Presser, 636 F. Supp. 817,

822 n.2 (D.D.C. 1986); United States v. Joly, 493 F.2d 672, 676 n.9 (2d Cir. 1974); Reynolds &

Richman, supra note 17, at 1180.

21. On October 8, 1976, the Fourth Circuit adopted a rule specifying the criteria for publishing opinions (Rule 18) and disfavoring citation to unpublished opinions (Rule 18(d)).

Hupman v. Cook, 640 F.2d 497, 501 n.7 (4th Cir. 1981); Reynolds & Richman, supra note 17,

at 1181, 1207 tbl. I.

22. The Third Circuit has not restricted citation to unpublished opinions in briefs. E.g.,

In re Mays, 256 B.R. 555, 558 (D.N.J. 2000); Equal Employment Opportunity Comm’n v. Watson Standard Co., 119 F.R.D. 632 (W.D. Pa. 1988). But by the 1990s the court’s internal operating procedures stated that the court would not cite to its unpublished opinions as

authority. Mark D. Hinderks & Steve A. Leben, Restoring the Common in the Law: A Proposal

for the Elimination of Rules Prohibiting the Citation of Unpublished Decisions in Kansas and the

Tenth Circuit, 31 Washburn L.J. 155, 162 n.42 (1992).

Until 1996, unpublished opinions by the court of appeals for the Fifth Circuit were binding precedents. 5th Cir. R. 47.5.3 to .4; Cavalier v. Caddo Parish Sch. Bd., 403 F.3d 246, 257

(5th Cir. 2005); United States v. Don B. Hart Equity Pure Trust, 818 F.2d 1246, 1250 (5th Cir.

1987).

The Tenth Circuit’s rules provided that unpublished opinions could be cited when relevant (Rule 17(c)). Dunn, supra note 20, at 135.
Citing Unpublished Opinions in Federal Appeals

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and two circuits were yet to be created.

23 Since then, three restrictive circuits have become discouraging,

24 one restrictive circuit has become permissive,

25 and one permissive circuit first became restrictive and then became discouraging.

26 The new circuits include a restrictive circuit27 and a

discouraging circuit.

28

At its June 2004 meeting, the Standing Committee on Rules of Practice

and Procedure asked the Appellate Rules Advisory Committee to ask the

Federal Judicial Center to conduct empirical research that would yield results helpful to the Standing Committee’s consideration of the Appellate

Rules Advisory Committee’s proposed rule. We undertook a research effort with three components: (1) a survey of judges, (2) a survey of attorneys, and (3) a survey of case files.

29

 

23. The Eleventh Circuit came into being October 1, 1981, Act of Oct. 14, 1980, Publ L.

No. 96–452, 94 Stat. 1994, and the Federal Circuit came into being October 1, 1982, Act of

Apr. 2, 1982, Publ L. No. 97–164, 96 Stat. 25. See also Commission on Structural Alternatives

for the Federal Courts of Appeals, Final Report 19–21 (Federal Judicial Center 1998).

24. The Sixth Circuit began permitting citation to unpublished opinions when there is

no published opinion on point on February 1, 1982 (Rule 24(b)). See, e.g., Baer v. R&F Coal

Co., 782 F.2d 600, 602 & n.1 (6th Cir. 1986); Re Rules of the United States Court of Appeals

for the Tenth Circuit, Adopted November 18, 1986, 955 F.2d 36, 38 n.4 (10th Cir. 1992).

In the 1990s, the Eighth Circuit began permitting citation to unpublished opinions when

there is no published opinion on point (Rule 28A(k)). See, e.g., Kirt Shuldberg, Comment,

Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Cal.

L. Rev. 541, 569 & n.133 (1997).

Effective December 16, 2002, the First Circuit now permits citation to unpublished opinions when there is no published opinion on point (Rule 32.3(a)(2)). See, e.g., Hoilett v. Allen,

365 F. Supp. 2d 110, 114 n.9 (D. Mass. 2005) (following 1st Cir. R. 32.3(a)(2) and relying on

unpublished First Circuit opinion); Barnett, supra note 16, at 474.

25. The District of Columbia Circuit permits citation to unpublished opinions issued in

2002 or later. D.C. Cir. R. 28(c)(1)(B). See also Pearson, supra note 16, at 1236 n.8, 1308 app. A.

26. Beginning November 18, 1986, the Tenth Circuit forbade citation to unpublished

opinions in unrelated cases (Rule 36.3). Re Rules of the United States Court of Appeals for

the Tenth Circuit, Adopted November 18, 1986, 955 F.2d 36 (10th Cir. 1992); Peter Jan

Honigsberg & James A. Dikel, Unfairness in Access to and Citation of Unpublished Federal Court

Decisions, 18 Golden Gate U. L. Rev. 277, 286 (1988). Since November 29, 1993, the circuit has

permitted citation to unpublished opinions when there is no published opinion on point.

E.g., Shuldberg, supra note 24, at 569 n.131.

The Fifth Circuit remains a permissive circuit, although its unpublished opinions issued

in 1996 or later are not binding precedent. 5th Cir. R. 47.5.4.

27. The Federal Circuit does not permit citation to unpublished opinions in unrelated

cases. Fed. Cir. R. 47.6(b).

28. The Eleventh Circuit permits citation to unpublished opinions, 11th Cir. R. 36–2, but:

“Reliance on unpublished opinions is not favored by the court,” 11th Cir. I.O.P. 36.5.

29. We are grateful to our colleagues Joe Cecil, Jim Eaglin, Tyeika Hartsfield, Estelita

Huidobro, Carolyn Hunter, Dean Miletich, Donna Pitts-Taylor, and Jeannette Summers for

their assistance with this research. We are grateful to Geoffrey Erwin, Sylvan Sobel, and

Russell Wheeler for their review of this report.
Citing Unpublished Opinions in Federal Appeals

5

We surveyed all 257 sitting circuit judges and asked them how citation

rules are likely to affect the time it takes to prepare unpublished opinions,

the length of unpublished opinions, and the frequency of unpublished

opinions. We also asked judges in circuits whose courts permit citation to

unpublished opinions in unrelated cases—the discouraging circuits and the

permissive circuits—whether these citations require additional work, are

helpful, and are inconsistent with published authority. We asked judges in

restrictive circuits whether special characteristics of their circuits would

create problems if attorneys were permitted to cite unpublished opinions

in unrelated cases. The courts of appeals in both the First and the District of

Columbia Circuits changed their local rules recently to relax their restrictions on citations to unpublished opinions, and we asked judges in those

circuits about the effects of the rule changes.

To get a representative sample of appellate attorneys who practice in

each circuit, we selected the authors of briefs filed in a random sample of

appeals in each circuit where a counseled brief was filed on both sides—

cases we call fully briefed appeals. We asked attorneys about their desires

to cite unpublished opinions in the cases selected, and we asked them

about the probable impact of a rule permitting citation to unpublished

opinions.

We examined citations in a random sample of cases filed in each circuit to determine how often attorneys and courts cite unpublished opinions

in unrelated cases. We have also collected data on whether the cases are

resolved by published or unpublished opinions, or without opinions, and

how long the published and unpublished opinions are.
Citing Unpublished Opinions in Federal Appeals

6

II. Survey of Judges

Judges in circuits that permit citation to unpublished opinions in unrelated

cases do not think the number of unpublished opinions that they author,

the length of their unpublished opinions, or the time it takes them to draft

unpublished opinions would change if the rules on citing unpublished

opinions were to change. Judges in circuits that recently relaxed their rules

on citation to unpublished opinions reported some increase in such citations, but no impact on their work.

Judges in circuits that permit citation to unpublished opinions in unrelated cases reported that these citations create only a small amount of

additional work and are seldom inconsistent with published authority, but

they are no more than occasionally helpful.

Judges in circuits that forbid citation to unpublished opinions in unrelated cases, on the other hand, predicted that relaxing the rules on citation

to unpublished opinions will result in shorter opinions or opinions that

take more time to prepare.

We surveyed all 257 sitting circuit judges, including 165 active judges

and 92 senior judges; 222 responded (86%). The response rate for individual circuits ranged from 64% in the District of Columbia Circuit (7 out of 11

judges) to 95% in the Sixth Circuit (21 out of 22 judges). (See Exhibit A,

Judge Survey Response Rates, infra page 31.)

Ten judges (4%) responded to the survey but did not answer its questions (one judge in a restrictive circuit—a senior judge in the Second Circuit

who observed that senior judges in that circuit do not prepare unpublished

opinions; five judges in discouraging circuits—three judges in the Fourth

Circuit who opined that their local rule works well as it is, one judge in the

Eighth Circuit who referred us to the views expressed by Judge Arnold in

Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), and one judge in the

Tenth Circuit; and four judges in permissive circuits—one judge in the

Fifth Circuit and three judges in the District of Columbia Circuit who

opined that their local rule works well as it is).

A. Preparing Unpublished Opinions

Most judges in circuits that permit citation to the court’s unpublished opinions said that a change in the rules making such opinions either more or

less citable would have no impact on the number of unpublished opinions,

the length of unpublished opinions, or the time it takes to draft them.

Among judges in the circuits that prohibit citation to their unpublished

opinions in unrelated cases, nearly half said that their unpublished opinions would get shorter if they were to become citable, and over half of the
Citing Unpublished Opinions in Federal Appeals

7

judges said that their unpublished opinions would take more time to write.

Most judges in the Second, Ninth, and Federal Circuits said that citations to

unpublished opinions would create special problems for their circuits, but

most judges in the Seventh Circuit said that such citations would not create

special problems.

1. If Citation Were Prohibited (Discouraging and

Permissive Circuits)

We asked judges in circuits that permit citation to their unpublished opinions to tell us what would happen if citation to the court’s unpublished

opinions were prohibited. We posed these questions to the 155 judges in

the discouraging circuits (105 judges in the First, Fourth, Sixth, Eighth,

Tenth, and Eleventh Circuits)

30 and the permissive circuits (50 judges in the

Third, Fifth, and District of Columbia Circuits).31

a. Length of Unpublished Opinions

We asked: If attorneys in your circuit were prohibited from citing your

court’s unpublished opinions, would the length of the unpublished opinions that you author increase, decrease, or stay the same? If there would be

an increase or decrease, which best describes the degree of change? Choices

were very great, great, moderate, small, and very small.

In circuits that permit citation to the court’s unpublished opinions,

judges would not expect the length of unpublished opinions to change if

they were not citable. We received answers to these questions from 79% of

the judges asked. A large majority (101 out of 123, or 82%) said that the

length of their unpublished opinions would stay the same if attorneys were

prohibited from citing them. (See Exhibit B, Length of Unpublished Opinions If Citation Was Prohibited, infra page 32.) Among the judges who said

that their unpublished opinions would change in length, approximately

twice as many said that they would decrease in length as said that they

would increase in length (15, or 12%, compared with 7, or 6%). Only six

judges (5%) said that the change would be more than moderate; four said

that there would be a great decrease or a very great decrease and two said

that there would be a great increase.

b. Drafting Time

We asked: If attorneys in your circuit were prohibited from citing your

court’s unpublished opinions, would the amount of time spent by your

 30. Three judges in the Fourth Circuit and one judge in the Eighth Circuit said that they

regard their circuit as a circuit that prohibits citation to unpublished opinions.

31. One judge in the Third Circuit and one judge in the Fifth Circuit said that they regard their circuit as a circuit that prohibits citation to unpublished opinions.
Citing Unpublished Opinions in Federal Appeals

8

chambers in preparing unpublished opinions increase, decrease, or stay the

same? If there would be an increase or decrease, which best describes the

degree of change? Choices were very great, great, moderate, small, and

very small.

In circuits that permit citation to the court’s unpublished opinions,

judges would not expect the time it takes to prepare unpublished opinions

to change if the opinions were not citable. We received answers to these

questions from 79% of the judges asked. A large majority (103 out of 123, or

84%) said that the amount of time spent preparing unpublished opinions

would stay the same if attorneys were prohibited from citing them. (See

Exhibit C, Time Preparing Unpublished Opinions If Citation Was Prohibited, infra page 33.) Among the judges who said that the amount of time

preparing unpublished opinions would change, all but one said that the

amount of time would decrease. Only three judges (2%) said that the

change would be more than moderate; all three said there would be a great

decrease or a very great decrease.

2. If Citation Were Allowed Only Sometimes (Permissive

Circuits)

We asked judges in circuits that freely permit citation to the court’s unpublished opinions to tell us what would happen if citation to the court’s unpublished opinions were permitted only when there is no published opinion on point. We posed these questions only to the 50 judges in the permissive circuits (the Third, Fifth, and District of Columbia Circuits).

a. Length of Unpublished Opinions

We asked: If attorneys were allowed to cite an unpublished opinion of your

court only when there was no published opinion on point, would the

length of the unpublished opinions that you author increase, decrease, or

stay the same? If there would be an increase or decrease, which best describes the degree of change? Choices were very great, great, moderate,

small, and very small.

In circuits that freely permit citation to the court’s unpublished opinions, judges would not expect the length of unpublished opinions to

change if those opinions could be cited only when there is no published

opinion on point. We received answers to these questions from 72% of the

judges asked. A large majority (27 out of 36, or 75%) said that the length of

the unpublished opinions that they authored would not change if attorneys

were permitted to cite them only when there was no published opinion on

point. (See Exhibit D, Length of Unpublished Opinions If Citation Was Allowed Only Sometimes, infra page 34.) Among the judges who said that

their unpublished opinions would change in length, all but one said that

the length would increase. Only two judges (6%) said that the change
Citing Unpublished Opinions in Federal Appeals

9

would be more than moderate; both said that there would be a great increase or a very great increase.

b. Drafting Time

We asked: If attorneys in your circuit were allowed to cite an unpublished

opinion of your court only when there was no published opinion on point,

would the amount of time spent by your chambers in preparing unpublished opinions increase, decrease, or stay the same? If there would be an

increase or decrease, which best describes the degree of change? Choices

were very great, great, moderate, small, and very small.

In circuits that freely permit citation to the court’s unpublished opinions, judges would not expect the time it takes to prepare unpublished

opinions to change if the opinions could be cited only when there is no

published opinion on point. We received answers to these questions from

74% of the judges asked. A large majority (28 out of 37, or 76%) said that

the amount of time spent preparing unpublished opinions would stay the

same if attorneys were permitted to cite them only when there is no published opinion on point. (See Exhibit E, Time Preparing Unpublished Opinions If Citation Was Allowed Only Sometimes, infra page 35.) All of the

judges who said that the amount of time preparing unpublished opinions

would change said that it would increase (9, or 24%). Only one said that

the change would be more than moderate; this judge said that there would

be a great increase.

3. If Citation Were Always Allowed

We asked judges in circuits that either do not permit citation to their unpublished opinions or permit citation to their unpublished opinions only

when there is no published opinion on point to tell us what would happen

if citation to the court’s unpublished opinions were freely permitted.

a. Number of Unpublished Opinions (Discouraging Circuits)

We posed these questions to the 105 judges in the discouraging circuits (the

First, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits).

We asked: If no restrictions were placed on the ability of an attorney

to cite an unpublished opinion of your court for its persuasive value, do

you think that the number of unpublished opinions that you author would

increase, decrease, or stay the same? If there would be an increase or decrease, which best describes the degree of change? Choices were very great,

great, moderate, small, and very small.

In circuits that permit citation to the court’s unpublished opinions

only when there is no published opinion on point, judges would not expect

the number of unpublished opinions that they author to change if citation

to the opinions were permitted more freely. We received answers to these
Citing Unpublished Opinions in Federal Appeals

10

questions from 79% of the judges asked. A large majority of judges (66 out

of 83, or 80%) said that the number of unpublished opinions that they

author would stay the same if attorneys could cite the court’s unpublished

opinions more freely. (See Exhibit F, Number of Unpublished Opinions If

Citation Was Freely Permitted, infra page 36.) Among the judges who said

that the number of unpublished opinions that they author would change,

more than three times as many said that the number would decrease as

said that the number would increase (13, or 16%, compared with 4, or 5%).

Only six judges (7%) said that the change would be more than moderate;

four said that there would be a great decrease or a very great decrease, and

two said that there would be a great increase.

b. Length of Unpublished Opinions (Restrictive and Discouraging Circuits)

We posed these questions to the 207 judges in the restrictive circuits (102

judges in the Second, Seventh, Ninth, and Federal Circuits) and the discouraging circuits (105 judges in the First, Fourth, Sixth, Eighth, Tenth, and

Eleventh Circuits). The wording of the questions was slightly different for

the two types of circuits.

Restrictive Circuits—Of judges in the restrictive circuits we asked: If attorneys in your circuit were allowed to cite unpublished opinions of your

court, would the length of the unpublished opinions that you author increase, decrease, or stay the same? If there would be an increase or decrease, which best describes the degree of change? Choices were very great,

great, moderate, small, and very small.

Discouraging Circuits—Of judges in the discouraging circuits we

asked: If no restrictions were placed on the ability of an attorney to cite an

unpublished opinion of your court for its persuasive value, would the

length of the unpublished opinions that you author increase, decrease, or

stay the same? If there would be an increase or decrease, which best describes the degree of change? Choices were very great, great, moderate,

small, and very small.

We received answers to these questions from 83% of the judges asked.

A large majority of judges (69 out of 88, or 78%) in the restrictive circuits

said that the length of the unpublished opinions that they author would

change if attorneys were permitted to cite them, but a substantial majority

of judges (58 out of 84, or 69%) in the discouraging circuits said that the

length of the unpublished opinions that they author would not change if attorneys were permitted to cite them freely. (See Exhibit G, Length of Unpublished Opinions If Citation Was Freely Permitted, infra page 37.)

A plurality of judges in restrictive circuits said that the length of their

unpublished opinions would decrease if attorneys were permitted to cite

them. Among the large majority of judges in restrictive circuits who said

that their unpublished opinions would change in length, most (41 out of 69,
Citing Unpublished Opinions in Federal Appeals

11

or 59%) said that the opinions would decrease in length. Most of these

judges (33 out of 41, or 80%) said that the decrease would be more than

moderate; 16 judges said there would be a very great decrease, and 17

judges said there would be a great decrease. Of the judges who said that

their unpublished opinions would increase in length, half said that the increase would be moderate or less, and half said that the increase would be

more than moderate. Six judges said that there would be a very great increase in the length of their unpublished opinions, and eight judges said

that there would be a great increase in the length of their unpublished

opinions.

Very few judges in discouraging circuits said that the length of their

unpublished opinions would decrease if attorneys were permitted to cite

those opinions more freely. Among the minority of judges (26 out of 84, or

31%) in discouraging circuits who said that their unpublished opinions

would change in length, a large majority (22 out of 26, or 85%) said that the

opinions would increase in length. Most of these judges (12 out of 22, or

55%) said that the increase would be moderate or less; two judges said that

there would be a very great increase, and eight judges said that there

would be a great increase. Only four judges (5%) in discouraging circuits

said that the length of their unpublished opinions would decrease if attorneys could cite unpublished opinions more freely; half said that there

would be a great decrease and half said that the decrease would be moderate or less.

c. Drafting Time (Restrictive and Discouraging Circuits)

We posed these questions to the 207 judges in the restrictive circuits (102

judges in the Second, Seventh, Ninth, and Federal Circuits) and the discouraging circuits (105 judges in the First, Fourth, Sixth, Eighth, Tenth, and

Eleventh Circuits). The wording of the questions was slightly different for

the two types of circuits.

Restrictive Circuits—Of judges in the restrictive circuits we asked: If attorneys in your circuit were allowed to cite unpublished opinions of your

court, would the amount of time spent by your chambers in preparing unpublished opinions increase, decrease, or stay the same? If there would be

an increase or decrease, which best describes the degree of change? Choices

were very great, great, moderate, small, and very small.

Discouraging Circuits—Of judges in the discouraging circuits we

asked: If no restrictions were placed on the ability of an attorney to cite an

unpublished opinion of your court for its persuasive value, would the

amount of time spent by your chambers in preparing unpublished opinions increase, decrease, or stay the same? If there would be an increase or

decrease, which best describes the degree of change? Choices were very

great, great, moderate, small, and very small.
Citing Unpublished Opinions in Federal Appeals

12

We received answers to these questions from 84% of the judges asked.

A very large majority of judges (160 out of 173, or 92%) who answered

these questions said that the amount of time they spend preparing unpublished opinions would stay the same or increase if attorneys could cite the

unpublished opinions more freely. (See Exhibit H, Time Preparing Unpublished Opinions If Citation Was Freely Permitted, infra page 38.) A majority

of judges (50 out of 89, or 56%) in the restrictive circuits said that the time

they would take to prepare unpublished opinions would increase if attorneys were permitted to cite the opinions, but a majority of judges (47 out of

84, or 56%) in the discouraging circuits said they would take the same

amount of time to prepare unpublished opinions if attorneys were permitted to cite the opinions freely.

Among the majority of judges in restrictive circuits who said that the

amount of time they spend preparing unpublished opinions would increase if attorneys could cite them, a substantial majority (33 out of 50, or

66%) said that the increase would be more than moderate. This includes

more than a third of all judges (37%) in restrictive circuits who responded

to the questions. Twelve judges said the increase would be very great; 21

judges said the increase would be great. Among the small minority of

judges (12 out of 89, or 13%) who said that the amount of time would decrease, four said the decrease would be very great, and four said the decrease would be great.

Among the minority of judges in discouraging circuits who said that

the amount of time they spend preparing unpublished opinions would

change if attorneys could cite the opinions freely, all but one said that the

amount of time would increase. Eleven judges said that the increase would

be more than moderate—four said the increase would be very great, and

seven said that the increase would be great. One judge said that there

would be a great decrease.

d. Problems (Restrictive Circuits)

We posed these questions to the 102 judges in the restrictive circuits (the

Second, Seventh, Ninth, and Federal Circuits).

We asked: Would a rule allowing the citation of unpublished opinions

in your circuit cause problems because of any special characteristics of

your court or its practices? If your answer is “yes,” please describe the

relevant characteristics.

We received an answer to the first question from 84% of the judges

asked. A substantial majority of the judges (58 out of 86, or 67%) said that a

rule permitting citation to the court’s unpublished opinions would be especially problematic for their circuit. (See Exhibit I, Problems with Proposed Rule, infra page 39.) But although a substantial majority of judges (53

out of 74, or 72%) in the Second, Ninth, and Federal Circuits said that there
Citing Unpublished Opinions in Federal Appeals

13

would be special problems, a majority of judges (7 out of 12, or 58%) in the

Seventh Circuit said that there would not be special problems.

Fifty-seven judges offered thoughts on the effect of permitting citation

to unpublished opinions in their courts. (See Appendix A, infra page 65.)

Twenty judges predicted that citations to unpublished opinions would increase judges’ workload. Thirteen judges predicted that unpublished opinions would become shorter if they could be cited. Seven judges expressed

concern about the quality of the court’s unpublished opinions. Six judges

observed that citations to unpublished opinions are unlikely to be helpful.

Five judges predicted that if unpublished orders could be cited, it could

take the court longer to resolve the cases in which they are issued. Three

judges predicted that allowing citation to unpublished opinions could ultimately result in the opinions being precedential. One judge predicted that

permitting citations to unpublished opinions would provide the government with an advantage. A few judges offered thoughts on more than one

of these topics, and eight judges expressed other thoughts.

B. Work of Chambers Reviewing Briefs (Discouraging 

and Permissive Circuits)

Most judges told us that citations to unpublished opinions create a small or

very small amount of additional work for them, are occasionally or seldom

helpful, and are seldom inconsistent with published authority.

We posed questions to the 155 judges in the discouraging circuits (105

judges in the First, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits) and

permissive circuits (50 judges in the Third, Fifth, and District of Columbia

Circuits).

1. Work

We asked: When a brief cites an unpublished opinion of your court, how

much additional work does this citation create for you and your chambers

staff? Choices were a very great amount, a great amount, some, a small

amount, and a very small amount.

Citations to unpublished opinions do not appear to create much additional work for the court. We received answers to this question from 75%

of the judges asked.

32 Almost all judges (114 out of 116, or 98%) said that an

unpublished opinion creates less than a great amount of additional work.

(See Exhibit J, Unpublished Citation’s Additional Work, infra page 40.) Approximately half of the judges who responded said that citations to unpublished opinions create a very small amount of additional work (57 out of

 

32. Five judges wrote “none,” which was not one of the choices offered.
Citing Unpublished Opinions in Federal Appeals

14

116, or 49%; 40 out of 82, or 49%, in discouraging circuits, and 17 out of 34,

or 50%, in permissive circuits).

2. Helpfulness

We asked: Which of the following best describes how often the citation of

an unpublished opinion of your court has been helpful? Choices were very

often, often, occasionally, seldom, and never.

Citations to unpublished opinions do not appear to be helpful very often. We received answers to this question from 79% of the judges asked. A

very large majority (116 out of 123, or 94%) said that citations to unpublished opinions have been helpful less than “often.” (See Exhibit K, Unpublished Citation’s Helpfulness, infra page 41.) A large minority (48 out of

123, or 39%) said that citations to unpublished opinions are occasionally

helpful, and another large minority (54 out of 123, or 44%) said that citations to unpublished opinions are seldom helpful. A smaller minority (14

out of 123, or 11%) said that citations to unpublished opinions are never

helpful. Six judges (5%) said that citations to unpublished opinions are often helpful, and one judge (1%) said that such citations are very often helpful.

3. Inconsistency

We asked: Which of the following best describes how often an attorney has

cited an unpublished opinion of your court that is inconsistent or difficult

to reconcile with a published opinion of your court? Choices were very often, often, occasionally, seldom, and never.

We received answers to this question from 79% of the judges asked.

Almost all judges (119 out of 122, or 98%) said that cited unpublished opinions have been inconsistent or difficult to reconcile with published authority less than “often.” (See Exhibit L, Unpublished Citation’s Inconsistency,

infra page 42.) Many judges (33 out of 122, or 27%) said that cited unpublished opinions are occasionally inconsistent, most (67 out of 122, or 55%)

said that cited unpublished opinions are seldom inconsistent, and a few (19

out of 122, or 16%) said that cited unpublished opinions are never inconsistent. Only two judges (2%) said that such opinions are often inconsistent,

and only one judge (1%) said that such opinions are very often inconsistent. Although the majority response in most circuits was seldom or never,

a substantial majority of Sixth Circuit judges (14 out of 20, or 70%) said that

cited unpublished opinions are occasionally inconsistent with published

authority.
Citing Unpublished Opinions in Federal Appeals

15

C. Effect of New Local Rules (A Discouraging Circuit—

the First Circuit; and a Permissive Circuit—the District 

of Columbia Circuit)

Two circuits have recently changed their local rules on citations to unpublished opinions. The courts of appeals for the First Circuit and the District

of Columbia Circuit used to prohibit citations to their unpublished opinions in unrelated cases.

The court of appeals for the First Circuit still discourages such citations but permits them if they have persuasive value and if there is no published opinion on point. The First Circuit used to be a restrictive circuit and

is now a discouraging circuit.

The court of appeals for the District of Columbia Circuit now permits

citation to unpublished opinions as precedent. The District of Columbia

Circuit used to be a restrictive circuit and is now a permissive circuit.

However, only unpublished opinions issued after the effective date of the

rule change, January 1, 2002, maybe be cited in unrelated cases.

We asked questions of the 10 judges in the First Circuit and the 11

judges in the District of Columbia Circuit. These judges told us that attorneys are now citing unpublished opinions more often, but this has not had

an impact on their work.

1. Frequency of Citation

We asked: Since this new local rule took effect, have attorneys cited unpublished opinions much more often, somewhat more often, as often as before,

somewhat less often, or much less often?

We received answers to this question from 70% of the judges in the

First Circuit. Most judges (5 out of 7, or 71%) said that attorneys cite unpublished opinions more often than before; of these judges, one judge said

that it happens much more often, and four judges said that it happens

somewhat more often. (See Exhibit M, Frequency of Citation to Unpublished Opinions After Local Rule Change, infra page 43.) Two judges said

that it happens as often as before.

We received answers to this question from 36% of the judges in the

District of Columbia Circuit. Most judges (3 out of 4, or 75%) said that attorneys cite unpublished opinions somewhat more often than before; one

judge said that it happens as often as before. (See Exhibit M, Frequency of

Citation to Unpublished Opinions After Local Rule Change, infra page 43.)

2. Drafting Time

We asked: Since this new local rule took effect, has the amount of time that

you have spent drafting unpublished opinions increased, decreased, or
Citing Unpublished Opinions in Federal Appeals

16

remained unchanged? If the amount of time that you have spent drafting

unpublished opinions has changed, has the change been very great, great,

small, or very small?

We received answers to these questions from 80% of the judges in the

First Circuit. Almost all of the judges (7 out of 8, or 88%) said the amount

of time they spend drafting unpublished opinions has not changed since

the opinions became citable; one judge said that there has been a small increase in time spent drafting unpublished opinions. (See Exhibit N, Time

Preparing Unpublished Opinions After Local Rule Change, infra page 44.)

We received answers to these questions from 36% of the judges in the

District of Columbia Circuit. All four judges said that the amount of time

they spend drafting unpublished opinions has not changed since the opinions became citable. (See Exhibit N, Time Preparing Unpublished Opinions

After Local Rule Change, infra page 44.)

3. Work

We asked: Has the new local rule made your work harder or easier? If the

new local rule has made your work harder or easier, has the change been

very great, great, small, or very small?

We received answers to these questions from 80% of the judges in the

First Circuit. Almost all of the judges (7 out of 8, or 88%) said that there has

been no appreciable change in the difficulty of their work since their circuit

adopted a new rule permitting citation to unpublished opinions; one judge

said that the work has become harder, but it has been a very small change.

(See Exhibit O, Work After Local Rule Change, infra page 45.)

We received answers to these questions from 36% of the judges in the

District of Columbia Circuit. All four judges said that there has been no

appreciable change in the difficulty of their work since their circuit

adopted a new rule permitting citation to unpublished opinions. (See Exhibit O, Work After Local Rule Change, infra page 45.)
Citing Unpublished Opinions in Federal Appeals

17

III. Survey of Attorneys

A random sample of federal appellate attorneys expressed a substantial

interest in citing unpublished opinions. Most attorneys said that a rule

permitting citation to unpublished opinions would not impose a burden on

their work, and most expressed support for such a rule.

To get a representative sample of attorneys practicing in each of the 13

circuits, we surveyed the authors of the briefs filed in the cases selected for

the survey of case files—a random sample of cases in each circuit. So that

our sample would be balanced between appellant and appellee attorneys,

we surveyed authors of briefs in cases that were fully briefed, by which we

mean a counseled brief was filed on both sides. We identified 384 attorneys

to survey, ranging from 12 in the Fourth Circuit to 41 in the Eighth Circuit.

We received 343 responses (89%).

33 (See Exhibit P, Attorney Survey Response Rates, infra page 46.)

A. Citing Unpublished Opinions in Briefs

A substantial number of attorneys told us that they would have been likely

to cite an unpublished opinion if their court’s rules on such citations had

been more lenient.

1. Wanted to Cite an Unpublished Opinion

a. Opinions by this Circuit

We asked: When doing your legal research for this appeal, did you encounter one or more unpublished opinions, memoranda, or orders of the court of

appeals for this circuit that you would have liked to cite, but did not because of the court’s rules on citations to unpublished opinions?

Approximately two-fifths (39%) of the attorneys said “yes.”34 (See Exhibit Q, Wanted to Cite This Court’s Unpublished Opinion, infra page 47.)

More attorneys in restrictive circuits said “yes” (49%, ranging from 33% in

the Second Circuit to 75% in the Federal Circuit) than in the discouraging

 

33. Some attorneys who responded to the survey did not answer every question. For

one of the fully briefed cases in the survey of case files, briefs were filed too late for attorneys in that case to be included in the survey of attorneys.

We sent each attorney a questionnaire with a cover letter from the chair of the Advisory

Committee on Appellate Rules. If we did not get a response after several weeks, we sent the

questionnaire again. If we still did not get a response, we faxed a third copy of the questionnaire. If we still did not get a response, we examined the brief for an alternate attorney

to survey. If there was such an attorney, we eliminated the first attorney from the sample

and surveyed the alternate.

34. For the attorney survey, averages across circuits are computed so that each circuit is

weighted equally.
Citing Unpublished Opinions in Federal Appeals

18

circuits (37%, ranging from 25% in the Eleventh Circuit to 46% in the

Eighth Circuit) or the permissive circuits (31%, ranging from 21% in the

District of Columbia Circuit to 40% in the Fifth Circuit).35

b. Opinions by Other Courts

We asked: When doing your legal research for this appeal, did you encounter one or more unpublished opinions, memoranda, or orders of one or more

other courts that you would have liked to cite, but did not because of the

court’s rules on citations to unpublished opinions?

Approximately one quarter of the attorneys (26%) said “yes.” (See Exhibit R, Wanted to Cite Another Court’s Unpublished Opinion, infra page

48.) More attorneys in restrictive circuits said “yes” (31%, ranging from

19% in the Second Circuit to 44% in the Ninth Circuit) than in the

discouraging circuits (23%, ranging from 8% in the First Circuit to 50% in

the Eighth Circuit) or the permissive circuits (25%, ranging from 15% in the

Fifth Circuit to 41% in the Third Circuit).

2. Would Have Cited an Unpublished Opinion

a. Opinions by this Circuit

We asked: Had this circuit’s rules on citation to unpublished opinions been

more lenient than they are, do you think you would have cited one or more

unpublished opinions, memoranda, or orders of the court of appeals for

this circuit in your brief or briefs in this appeal?

Nearly half of the attorneys (48%) said “yes.” (See Exhibit S, Would

Have Cited This Court’s Unpublished Opinion, infra page 49.) More attorneys in the restrictive circuits said “yes” (59%, ranging from 43% in the

Second Circuit to 80% in the Federal Circuit) than in the discouraging circuits (45%, ranging from 26% in the First Circuit to 56% in the Sixth Circuit) or the permissive circuits (39%, ranging from 26% in the District of

Columbia Circuit to 46% in the Third Circuit).

b. Opinions by Other Courts

We asked: Had the circuit’s rules on citation to unpublished opinions been

more lenient than they are, do you think you would have cited one or more

unpublished opinions, memoranda, or orders of one or more other courts in

your brief or briefs in this appeal?

 

35. It is perhaps surprising that so many attorneys in circuits that ostensively permit citation to unpublished opinions said they wished they could have cited such opinions in the

selected cases. But the court of appeals for the District of Columbia Circuit only permits

citation to its unpublished opinions issued in 2002 or later, and the lack of a local rule by the

court of appeals for the Third Circuit explicitly addressing the issue creates an environment

in which some attorneys are unsure whether they should cite unpublished opinions or not.
Citing Unpublished Opinions in Federal Appeals

19

Approximately one third of the attorneys said “yes” (32%). (See Exhibit T, Would Have Cited Another Court’s Unpublished Opinion, infra

page 50.) More attorneys in the restrictive circuits said “yes” (34%, ranging

from 21% in the Federal Circuit to 50% in the Ninth Circuit) and in the discouraging circuits (33%, ranging from 4% in the First Circuit to 54% in the

Eighth Circuit) than in the permissive circuits (29%, ranging from 20% in

the Fifth Circuit to 44% in the Third Circuit).

B. The Impact of the Proposed Rule

1. Burden

Attorneys reported that a rule permitting citation to unpublished opinions

in unrelated cases would have little impact on the attorneys’ workloads.

We asked: What effect on your appellate work would a new rule of

appellate procedure freely permitting citations to unpublished opinions in

all circuits (but not changing whether such opinions are binding precedent

or not) have on your federal appellate work? Choices were substantially

more burdensome, a little bit more burdensome, no appreciable impact, a

little less burdensome, and substantially less burdensome.

A plurality of attorneys (38%) said that a rule permitting citation to

unpublished opinions in unrelated cases would have “no appreciable impact” on their workloads. (See Exhibit U, Impact on Work of New Rule,

infra page 51.) Regarding the choices ranging from substantially less burdensome to substantially more burdensome as a scale from 1 to 5, with 3.0

representing “no appreciable impact,” the average burden rating among

the attorneys answering this question was 3.1, which corresponds to very

slightly more burdensome. The average change in burden predicted by attorneys was slightly higher in the restrictive and discouraging circuits (3.1)

than in the permissive circuits (2.9). The averages for individual circuits

ranged from 2.7 in the Federal Circuit (slightly less burdensome) to 3.6 in

the Ninth Circuit (slightly more burdensome).

Approximately 10% of the attorneys said that a rule freely permitting

citation to unpublished opinions in unrelated cases would make their work

substantially more burdensome. The rates for this answer by circuit were

highest in the Ninth Circuit (22%) and the First Circuit (19%). The rates for

all other circuits were 13% or less.

Approximately 7% of the attorneys said that a rule freely permitting

citation to unpublished opinions in unrelated cases would make their work

substantially less burdensome. The rates for individual circuits ranged from

0% in two circuits (the Second and Seventh Circuits) to 19% in the Federal

Circuit.
Citing Unpublished Opinions in Federal Appeals

20

2. Open-Ended Question

We asked: The Appellate Rules Advisory Committee has proposed a new

national rule, which would permit citation to the courts of appeals’ unpublished opinions; what impact would you expect such a rule to have?

Although attorneys were not asked explicitly whether they would

support or oppose the proposed rule, their support or opposition was often

apparent from their answers. Of the 307 attorneys who answered this question, most were supportive of the proposed rule (169, or 55%), many were

neutral (75, or 24%), and many opposed the proposed rule (63, or 21%).

(See Exhibit V, Attitude Toward Proposed Rule, infra page 52. See Appendix B, infra page 77, for a compilation of the responses.)

Many attorneys commented on the implications of having a substantial amount of additional legal authority to cite. Ninety-three attorneys saw

this as having access to additional valuable resources, but four attorneys

worried about bias in the additional authority. Thirty-three attorneys observed that a substantial amount of legal authority to cite entails a substantial amount of additional work, but seven attorneys said that they already

review the unpublished opinions anyway.

Many attorneys commented on how unpublished opinions are used.

Four attorneys discussed strategies for using unpublished opinions even

when it is not permissible to cite them. Twenty-six attorneys observed that

unpublished opinions are not precedents, which implies that they would

not be very useful. Another 16 attorneys provided additional comments

calling into question the usefulness of unpublished opinions as authorities.

Fifteen attorneys opined that unpublished opinions tend not to be of as

high quality as published opinions in their drafting, but one attorney said

that their quality is good.

A strong historical reason for restricting citation to unpublished opinions was the fact that many attorneys did not have easy access to them. But

now that so many opinions are available electronically at attorneys’ desktops, this reason appears to have less force. Twelve attorneys mentioned

how accessible unpublished opinions are now, but 15 attorneys said that

they are still often less accessible than published opinions.

Many attorneys commented on what impact on the court and the law

the ability to cite unpublished opinions might have. Twenty-six attorneys

predicted an increase in legal consistency, but three attorneys predicted a

decrease in consistency. Seventeen attorneys predicted that unpublished

opinions would improve in quality if they could be cited. Three attorneys,

on the other hand, predicted that they would just get shorter. Two attorneys predicted that they would get longer. Five attorneys predicted that

cases resulting in unpublished opinions would take longer to resolve.
Citing Unpublished Opinions in Federal Appeals

21

Several attorneys addressed broad policy issues related to whether attorneys can cite unpublished opinions. Nine attorneys opined that the ability to cite unpublished opinions would make courts more accountable.

Four attorneys observed that the proposed rule would further blur the distinction between published and unpublished opinions. And 12 attorneys

suggested that perhaps the distinction should be eliminated.

Sixty-six attorneys provided other comments: 32 were supportive of

the proposed rule, 31 were neutral, and three were opposed to it.
Citing Unpublished Opinions in Federal Appeals

22

IV. Survey of Case Files

On average, the courts of appeals published approximately one-third of

their opinions in our sample of cases, but most of the courts resolved half

to most of their cases without opinions. And many of the unpublished

opinions in our sample—most for some courts—are under 500 words in

length, which means they are so short as to be of limited value as authorities.

It is relatively common for a fully briefed federal appeal—a case with

counseled briefs filed on both sides—to include in a brief or opinion a citation to an unpublished opinion in an unrelated case; that is, cited as legal

authority rather than concerning the history of the case. This occurs much

more often in the briefs than in the opinions. But citations to unpublished

opinions account for only 1.4% of citations to opinions. Citations to unpublished opinions, especially in the briefs, often are in string citations, which

suggests that the citations are not crucial.

Many of the unpublished opinions cited were written by courts other

than the ones hearing the appeals.

Of the 650 cases we reviewed for this study, we found six opinions—

three by the court of appeals for the Sixth Circuit and three by the court of

appeals for the Tenth Circuit—that cite the court’s own unpublished opinions.

A. Opinions

From all of the appeals filed in federal courts of appeals in 2002, we selected at random 50 in each circuit.

36 We selected cases filed in 2002 so that

they would be filed recently enough for many documents to be available

electronically, but long enough ago so that almost all of them would be resolved. In fact, all but six (99%) have been resolved.

37

 

36. The number of cases filed in 2002 per circuit ranged from 1,105 for the District of Columbia Circuit to 12,365 for the Ninth Circuit. (See Exhibit W, Cases Filed in 2002, infra page

58.)

37. As of December 2, 2005, all cases selected in the First, Fourth, Fifth, Sixth, Seventh,

Eighth, Eleventh, and Federal Circuits have been resolved. Still unresolved are one case in

the Second Circuit, Ni v. Ashcroft (2d Cir. 02–4903, filed Dec. 9, 2002) (immigration appeal

scheduled to be ready for argument the week of Oct. 3, 2005); one case in the Third Circuit,

Aruanno v. Cape May City Jail (3d Cir. 02–1395, filed Feb. 7, 2002) (prisoner appellant’s

appointed attorney suggested May 4, 2004 that the court summarily vacate the district

court’s orders and remand for development of a more complete record); one case in the

Ninth Circuit, United States v. Murillo (9th Cir. 02–50200, filed Apr. 24, 2002) (decision

pending in a sentencing guidelines appeal consolidated with nine others); one case in the

Tenth Circuit, Initiative and Referendum Institute v. Walker (10th Cir. 02–4123, filed July 24,

2002) (en banc rehearing pending in an action challenging a requirement by Utah’s constitu-
Citing Unpublished Opinions in Federal Appeals

23

Ninety-one of the appeals were resolved by opinions published in

West’s Federal Reporter (14%). The percentage of cases resolved by published opinions ranged from 2% for the courts of appeals for the Fourth

Circuit and the Eleventh Circuit to 34% for the court of appeals for the

Eighth Circuit. (See Exhibit X, Dispositions (with Opinion Rates and Publication Rates), infra page 54, for the individual circuits’ data.)

Nearly a third of the appeals were resolved by unpublished opinions

(199, or 31%). An opinion is considered unpublished if it is not published

in the Federal Reporter, but West and Lexis publish most of them online and

West now publishes most of them in a print series called the Federal Appendix.

38 We found all unpublished opinions published in the Federal Appendix

for the courts of appeals for eight of the circuits: the First, Fourth, Sixth,

Seventh, Eighth, Ninth, Tenth, and Federal Circuits. We found most unpublished opinions published in the Federal Appendix for the courts of appeals for two of the circuits (the Second and Fifth Circuits) and some published in the Federal Appendix for the courts of appeals for two of the circuits (the Third and District of Columbia Circuits).

The court of appeals for the Eleventh Circuit only permitted electronic

access to their unpublished opinions in April 2005, and it has permitted

this access only prospectively. All of the unpublished opinions of this court

that we examined were “tabled” in the Federal Appendix, showing only

whether the lower court was affirmed or reversed. The court of appeals for

the Third Circuit publishes most of its signed unpublished opinions in the

Federal Appendix, but only tables most of its per curiam unpublished opinions there. The court of appeals for the Fifth Circuit used to publish some

and table some unpublished opinions in the Federal Appendix, but now publishes all of them there.

Most or all unpublished opinions are on Westlaw for all courts except

the court of appeals for the Eleventh Circuit, which only started making

unpublished opinions available electronically recently. Approximately half

of the courts post most or all of their unpublished opinions on their websites—courts of appeals for the First, Second, Third, Fourth, Fifth, and

Eighth Circuits.

39 All published and unpublished opinions are available

 

tion of a two-thirds supermajority for voters to enact legislation concerning the taking of

wildlife); and two cases in the District of Columbia Circuit, Town of Cortlandt v. Federal

Energy Regulatory Commission (D.C. Cir. 02–1331, filed Nov. 1, 2002) (Federal Energy

Regulatory Commission appeal held in abeyance pending resolution of an action in the district court by an intervenor in this appeal) and Constellation Power Source, Inc. v. Federal

Energy Regulatory Commission (D.C. Cir. 02–1367, filed Nov. 27, 2002) (Federal Energy

Regulatory Commission appeal that arose out of the 2000 California energy crisis held in

abeyance pending the resolution of other cases arising from that crisis).

38. West began publishing the Federal Appendix in September 2001.

39. This does not include the courts that post unpublished opinions on their websites

for a limited time.
Citing Unpublished Opinions in Federal Appeals

24

through PACER40 for cases in four circuits—the First, Fourth, Eighth, and

District of Columbia Circuits—and some opinions are available through

PACER for cases in the Tenth Circuit.

Some courts follow a pattern in which published opinions are signed

and unpublished opinions are per curiam. This is true for the cases we examined in the courts of appeals for the Fourth, Fifth, and Eighth Circuits.

The courts of appeals for the Seventh and Tenth Circuits designate their

unpublished opinions as “orders.” The court of appeals for the Sixth Circuit designates some of them “orders,” and the court of appeals for the District of Columbia Circuit designates some of them “judgments” and some

of them “orders.” The court of appeals for the Second Circuit designates

them “summary orders,” and the court of appeals for the Ninth Circuit

designates them “memorandum” opinions or dispositions.

Among the cases in our sample decided by opinions, an average of

34% were decided by published opinions, with the rates for individual circuits ranging from 3% for the court of appeals for the Fourth Circuit to 86%

for the court of appeals for the First Circuit.

41 (See Exhibit Y, Publication of

Opinions in Closed Cases with Opinions, infra page 55, for the individual

circuits’ data.)

Almost all of the published opinions in our sample are over 1,000

words in length, which corresponds to about four pages of office text (or

two pages in the Federal Reporter). The only exceptions are one published

opinion by the court of appeals for the Second Circuit, which is 900 words

in length,

42 and the only published opinion in our sample by the court of

appeals for the Eleventh Circuit, which is 679 words in length.

43

An average of 72% of each court’s unpublished opinions are fewer

than 1,000 words in length, which we regard as short. The rates for individual courts ranged from 43% for the court of appeals for the Seventh Circuit to 100% for the courts of appeals for the Eighth and District of Columbia Circuits.

Some who have expressed concern about the proposal to uniformly

permit citations to unpublished opinions have observed that unpublished

 

40. Public Access to Court Electronic Records (PACER) provides fee-based online access

to federal courts’ docket and related information. Fees are waived for the Federal Judicial

Center.

41. Our sample estimates are very reliable. To test the reliability of these estimates, we

selected 50 cases at random for each circuit from appeals filed in 2003 and determined

whether each case was still open or was resolved by published opinion, unpublished opinion, or docket judgment. With respect to the percentage of cases resolved by opinion among

closed cases, there was very high agreement among the circuits comparing our samples of

cases filed in 2002 and 2003, r = .79, p = .001. There was also very high agreement comparing

the percentage of opinions that are published, r = .86, p < .001.

42. Ni v. United States Department of Justice, 424 F.3d 172 (2d Cir. 2005).

43. United States v. Anderson, 328 F.3d 1326 (11th Cir. 2003).
Citing Unpublished Opinions in Federal Appeals

25

opinions are often so very short as to not be useful as authority, and some

have expressed concern that permission to cite unpublished opinions could

result in their becoming so very short as to not be useful as authority. A

crude, but useful, index of an opinion so very short as to be minimally useful as authority is an opinion under 500 words in length.

44 We found no

published opinion that short in our sample. An average of 52% of the

courts’ unpublished opinions are that short, ranging from 0% for the court

of appeals for the Sixth Circuit to 100% for the court of appeals for the

Eighth Circuit. (See Exhibit Z, Very Short, Short, and Other Unpublished

Opinions, infra page 56, and Exhibit AA, Percentage of Unpublished Opinions That Are Very Short, infra page 57.)

Although the rate of very short unpublished opinions spanned the full

range of possible values, on average the rates were higher the more permissive the court with respect to citations to unpublished opinions. The

average rate for restrictive courts was 43%, the average rate for discouraging courts was 53%, and the average rate for restrictive courts was 61%. But

because the variation among the courts is so great, this trend is not statistically significant.

45

A majority of the appeals were not resolved by an opinion (354 or

54%). We refer to these cases as resolved by “docket judgments.” Typically,

the cases have docket entries stating how the cases were resolved (e.g., appeal voluntarily dismissed, certificate of appealability denied) and an order

to that effect may be in the case file, but not a document in the form of an

opinion.

46

In most courts, docket judgments are very short—just a few words. In

the court of appeals for the First Circuit, however, they can be as long as a

few hundred words, and they often cite opinions as authority. But they do

not appear as opinions on Westlaw or in the Federal Appendix. The court of

appeals for the Federal Circuit, on the other hand, does publish the equivalent of docket judgments—a few dozen words resolving the appeal—on

Westlaw and in the Federal Appendix.

The court of appeals for the District of Columbia Circuit makes available electronically through the docket sheets its one- or two-page orders

resolving cases without published opinions. Sometimes these orders are

designated per curiam and list the names of the judges on the panel to

which the case was assigned. Most of these orders are published in the Fed-

 44. For data on how many published and unpublished opinions were shorter or longer

than 500 words during a 1978–1979 reporting year, see William L. Reynolds & William M.

Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of

Reform, 48 U. Chi. L. Rev. 573, 598–600 (1981).

45. r = .20, p = .51.

46. The court of appeals for the Fourth Circuit uses form opinions to deny certificates of

appealability; other courts would resolve these cases by docket judgments.
Citing Unpublished Opinions in Federal Appeals

26

eral Appendix, and we consider them unpublished opinions. Sometimes the

orders do not identify the judges to whom the case was assigned and bear

only the name of the clerk. Most of these are not published in the Federal

Appendix. We refer to these orders as “clerk’s orders” and consider them

the equivalent of docket judgments.

B. Citations

We examined all of the citations in the briefs and opinions filed in the 650

selected cases.

47 We did not examine pro se briefs, and we did not examine

memoranda supporting or opposing motions. One or more counseled

briefs were filed in 41% of the cases. The rates for individual circuits

ranged from 22% for the court of appeals for the Fourth Circuit to 54% for

the court of appeals for the Eighth Circuit. (See Exhibit BB, Appeals with

Counseled Briefs, infra page 58, for the individual circuits’ data.) We consider cases with one or more counseled briefs filed “briefed cases,” and we

consider cases with one or more counseled briefs filed on both sides “fully

briefed cases.”48

We counted and analyzed citations to opinions and other authorities,

but did not count citations to constitutions, statutes, regulations, and similar authorities, because statutory authorities usually are too difficult to

enumerate.

49 The following statistics also omit citations to opinions in related cases. Of the 18,098 nonstatutory citations in the 650 case files, 17,038

 47. This includes 294 opinions and 633 briefs (213 appellant and petitioner briefs, 260

appellee and respondent briefs, 145 reply briefs, and 15 intervenor and amicus curiae briefs).

48. Extrapolating from our sample, taking into account how many consolidated appeals

each brief concerned, we estimate that in 2002 there were the following numbers of counseled briefs filed in each of the circuits:

Estimated Counseled Counseled

Counseled Briefs Per Briefs Per

Circuit Briefs Judgeship Case

First 1,536 256 0.89

Second 3,544 273 0.66

Third 3,612 258 0.98

Fourth 1,456 97 0.31

Fifth 5,991 352 0.68

Sixth 5,119 320 1.11

Seventh 2,505 228 0.72

Eighth 4,082 371 1.28

Ninth 8,581 306 0.69

Tenth 2,886 241 1.09

Eleventh 6,483 540 0.88

District of Columbia 1,228 102 1.11

Federal 1,382 115 0.77

All Circuits 48,406 270 0.80

49. For example, do sections 1842 and 1843 count as separate authorities or part of the

same authority? How about paragraphs (a) and (b)?
Citing Unpublished Opinions in Federal Appeals

27

(94%) are citations to court opinions,

50 649 (4%) are citations to agency or

arbitrator decisions, and 411 (2%) are citations to other authorities.

51 (See

Exhibit CC, Authorities Cited, infra page 59.) We used WestCheck and

Westlaw to examine every citation to an opinion in every brief and opinion

in the selected cases. We determined that 244 of the court opinions cited are

unpublished opinions. This is 1.5% of the citations to opinions. Appendix C

describes all citations to nonstatutory authorities. (See Appendix C, infra

page 125.)

There are citations to unrelated unpublished opinions—in a brief or an

opinion—in 13% of the cases, including an average of 30% of the briefed

cases and an average of 36% of the fully briefed cases. This rate is approximately the same for restrictive, discouraging, and permissive courts.

(See Exhibit DD, Briefed Cases with Citations to Unrelated Unpublished

Opinions, infra page 60.)

When unpublished opinions are cited, especially in briefs, they often

are included in string citations, and it does not appear to someone not intimately involved in the cases that inclusion or exclusion of these citations

would make much of a difference.

Approximately half of the cases with citations to unpublished opinions have citations only to unpublished opinions of other courts—other

courts of appeals, district courts, and state courts. There are citations to unrelated unpublished opinions by the court of appeals deciding the case in

6% of the cases, including an average of 14% of the briefed cases and an

average of 18% of the fully briefed cases. This rate is approximately three

times as high for discouraging courts as it is for restrictive and permissive

courts. (See Exhibit EE, Briefed Cases with Citations to Unrelated Unpublished Opinions by the Deciding Court, infra page 61.)

We expected unpublished opinions of courts in restrictive circuits to

be cited to and by those courts less often than unpublished opinions by

other courts are cited to and by the other courts. We did not expect the rate

of such citations to be dramatically lower for permissive courts than for

discouraging courts. But the court of appeals for the District of Columbia

Circuit has been a permissive court for only a short time, and the average

for discouraging courts is driven relatively high by relatively very high

rates for the courts of appeals for the Sixth and Tenth Circuits.

 

50. These include citations to Supreme Court opinions (22%), citations to published

opinions by the court hearing the appeal (42%), citations to published opinions by other

federal courts of appeals (17%), citations to published opinions by other federal courts (6%),

citations to published opinions by state courts (6%), citations to opinions by foreign courts

(0.1%), and citations to unpublished court opinions (1%).

51. The citations to other authorities include citations to restatements (29); treatises

(112); dictionaries (43); other books (58); articles (108); reports, manuals, and websites (58);

movies (2); and a famous poem.
Citing Unpublished Opinions in Federal Appeals

28

We found opinions by courts of appeals for six circuits—the First,

52

Third,

53 Sixth,54 Seventh,55 Tenth,56 and District of Columbia57 Circuits—that

cite unrelated unpublished opinions.

 

52. One unpublished opinion by the court of appeals for the First Circuit cites an unpublished opinion by another federal court of appeals. In United States v. Quiñones Rodríguez, 70 Fed. Appx. 591, 591, 2003 WL 21699845 (1st Cir. 2003), the court distinguished

two unpublished opinions by the court of appeals for the Eleventh Circuit, United States v.

Clements, 2002 WL 1049106 (11th Cir. 2002), and United States v. Joseph, 2002 WL 1396783

(11th Cir. 2002).

53. Two published opinions by the court of appeals for the Third Circuit cite unpublished district court opinions. In W.V. Realty Inc. v. Northern Insurance Company of New York,

334 F.3d 306, 313–14 & n.6 (3d Cir. 2003), the court cited three unpublished opinions by the

district court for the Eastern District of Pennsylvania: Slater v. Liberty Mutual Insurance Co.,

1999 WL 178367 (E.D. Pa. 1999), Cooper v. Nationwide Mutual Insurance Co., 2002 WL

31478874 (E.D. Pa. 2002), and General Refractories Co. v. Fireman’s Fun Insurance Co., 2002 WL

376923 (E.D. Pa. 2002). In In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, 401 F.3d 143, 169 (3d Cir. 2005) (Ambro, J., concurring), a concurring

judge cited an unpublished opinion by the district court for the Eastern District of Pennsylvania, In re Magic Marker Securities Litigation, 1979 WL 1248 (E.D. Pa. 1979).

54. Four opinions by the court of appeals for the Sixth Circuit cite unpublished federal

opinions. Three of these opinions cite the court’s own unpublished opinions.

In Smith v. Henderson, 376 F.3d 529, 536 (6th Cir. 2004), the court cited one of its unpublished opinions, Brown v. Chase, 14 Fed. Appx. 482, 2001 WL 814931 (6th Cir. 2001). In Klimik

v. Kent County Sheriff’s Department, 91 Fed. Appx. 396, 400, 2004 WL 193168 (6th Cir. 2004),

the court quoted one of its other unpublished opinions, Bower v. Fillage of Mount Sterling, 44

Fed. Appx. 670, 2002 WL 1752270 (6th Cir. 2002). In Moore v. Potter, 47 Fed. Appx. 318, 320,

2002 WL 31096673 (6th Cir. 2002), the court cited one of its unpublished orders, Savage v.

Unknown FBI Agents, 1998 WL 69318 (6th Cir. 1998).

In Hauck v. Commissioner of Internal Revenue, 64 Fed. Appx. 492, 493, 2003 WL

21005238 (6th Cir. 2003), the court cited an unpublished opinion by the district court for the

Western District of Texas, Perez v. United States, 2001 WL 1836185 (W.D. Tex. 2001).

55. One published opinion by the court of appeals for the Seventh Circuit cites a depublished district court opinion. In United States v. George, 363 F.3d 666, 672 (7th Cir. 2004), the

court cited an opinion by the district court for the Eastern District of Pennsylvania that was

initially published, United States v. Llera Plaza, 179 F. Supp. 2d 492 (E.D. Pa. 2002), but subsequently withdrawn by the court and replaced by a new published opinion, United States v.

Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa. 2002).

56. In four cases the court of appeals for the Tenth Circuit cited unpublished opinions

by federal courts of appeals. In three of these cases the court cited its own unpublished

opinions.

In United States v. Cruz-Alcala, 338 F.3d 1194, 1197, 1199 (10th Cir. 2003), the court cited

one of its own unpublished opinions, United States v. Molina-Barajas, 47 Fed. Appx. 552 (10th

Cir. 2002), and an unpublished opinion by the court of appeals for the Ninth Circuit, United

States v. Viveros-Castro, 1998 WL 225053 (9th Cir. 1998). In Wiransane v. Ashcroft, 366 F.3d

889, 898 (10th Cir. 2004), the court cited one of its own unpublished opinions, Limerta v. Ashcroft, 88 Fed. Appx. 363, 2004 WL 309333 (10th Cir. 2004), and an unpublished opinion by

the court of appeals for the Third Circuit, Lauw v. Ashcroft, 2003 WL 22881647 (3d Cir. 2003).

In Jackson v. Barnhart, 60 Fed. Appx. 255, 257, 2003 WL 1473554 (10th Cir. 2003), the court

cited one of its own unpublished opinions, Bellamy v. Massanari, 29 Fed. Appx. 567, 2002 WL

120532 (10th Cir. 2002).
Citing Unpublished Opinions in Federal Appeals

29

We found three opinions by the court of appeals for the Sixth Circuit

58

and three opinions by the court of appeals for the Tenth Circuit

59 that cite

the courts’ own unpublished opinions. Interestingly, one of these opinions

also cites an unpublished opinion by the court of appeals for the Ninth Circuit, a restrictive court.

60

 

The court published three opinions in O Centro Espirita Beneficiente Uniao do Vegetal v.

Ashcroft (10th Cir. 02–2323, filed Dec. 3, 2002, judgment Nov. 12, 2004). First the court published an opinion by a two-judge panel staying the district court’s preliminary injunction

pending appeal. O Centro Espirita Beneficiente Uniao do Vegetal, 314 F.3d 463 (10th Cir.

2002). This opinion, id. at 467, cites an unpublished opinion by the court of appeals for the

Eighth Circuit, United States v. Brown, 1995 WL 732803 (8th Cir. 1995). The appeal was initially decided by a three-judge panel in a published opinion, O Centro Espirita Beneficiente

Uniao do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003), but reheard en banc and decided

by a published per curiam opinion, O Centro Espirita Beneficiente Uniao do Vegetal, 389 F.3d

973 (10th Cir. 2004). An opinion concurring with the en banc opinion, id. at 1020 (McConnell, J.), and an opinion concurring in part and dissenting in part, id. at 984 (Murphy, J.),

also cite the unpublished Eighth Circuit opinion.

57. One published opinion by the court of appeals for the District of Columbia Circuit

cites an unpublished consent decree filed in the district court for the District of Columbia. In

Northeast Maryland Waste Disposal Authority v. Environmental Protection Agency, 358 F.3d 936,

941 n.5 (D.C. Cir. 2004), the court cited a consent decree in another case requiring the Environmental Protection Agency to promulgate certain standards.

58. See supra note 54.

59. See supra note 56.

60. Id.
Citing Unpublished Opinions in Federal Appeals

30

V. Exhibits

With the exception of one pie chart, the following 31 exhibits present data

by circuit. Circuits are grouped by type of citation rule, with the restrictive

circuits on the left, the permissive circuits on the right, and the discouraging circuits in between.

For most of the exhibits pertaining to the survey of judges, not all circuits are included, because the exhibits display data for questions that were

applicable to only some of the circuits.

Some of the exhibits pertaining to the survey of attorneys and the survey of cases have shaded regions behind the bars for each circuit. These

shaded regions display averages for the three types of circuits (restrictive,

discouraging, and permissive).
Circuit

A. Judge Survey Response Rates

20

13

43

14

8 10

21

19

16 16

19

16

7

3

3

4

2

2

4

1

3

3

2

3

1

4

64%

94%

86%

89% 84%

95% 86%

71%

80%

88%

91%

81%

87%

05

10

15

20

25

30

35

40

45

50

279 Federal1468 101135 DC

did not

respond

responded

31

Citing Unpublished Opinions in Federal Appeals

Number of Judges
1

1

1

1

1

1

1

7

7

16

17

12

14 15

9

4

1

1

1

1

2

1

2

2

21

1

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1468 101135 DC

 very great

 decrease

 great

 decrease

 moderate

 decrease

 small

 decrease

 very small

 decrease

 stay the

 same

 very small

 increase

 small

 increase

 moderate

 increase

 great 

 increase

 very great

 increase

Cumulative Percentage

Circuit

B. Length of Unpublished Opinions If Citation Was Prohibited

Citing Unpublished Opinions in Federal Appeals

32
16

7

15

17

12

15

17

11

3

1

1

2

1

1

3

1

3

2

1

1

1

1

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1468 101135 DC

 very great

 decrease

 great

 decrease

 moderate

 decrease

 small

 decrease

 very small

 decrease

 stay the

 same

 very small

 increase

 small

 increase

 moderate

 increase

 great 

 increase

 very great

 increase

C. Time Preparing Unpublished Opinions If Citation Was Prohibited

Circuit

Cumulative Percentage

Citing Unpublished Opinions in Federal Appeals

33
113

21

13 10

4

1

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

35 DC

Cumulative Percentage

Circuit

 very great

 decrease

 great

 decrease

 moderate

 decrease

 small

 decrease

 very small

 decrease

 stay the

 same

 very small

 increase

 small

 increase

 moderate

 increase

 great 

 increase

 very great

 increase

D. Length of Unpublished Opinions If Citation Was Allowed Only Sometimes

Citing Unpublished Opinions in Federal Appeals

34
1

5

2

1

13

11

4

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

3 5 DC

 very great

 decrease

 great

 decrease

 moderate

 decrease

 small

 decrease

 very small

 decrease

 stay the

 same

 very small

 increase

 small

 increase

 moderate

 increase

 great 

 increase

 very great

 increase

Circuit

Cumulative Percentage

E. Time Preparing Unpublished Opinions If Citation Was Allowed Only Sometimes

Citing Unpublished Opinions in Federal Appeals

35
1

1

1

1

4

5

16

13

13

15

2

3

1

1

2

1

1

1

1

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1468 1011

Cumulative Percentage

Circuit

F. Number of Unpublished Opinions If Citation Was Freely Permitted

 very great

 decrease

 great

 decrease

 moderate

 decrease

 small

 decrease

 very small

 decrease

 stay the

 same

 very small

 increase

 small

 increase

 moderate

 increase

 great 

 increase

 very great

 increase

Citing Unpublished Opinions in Federal Appeals

36
1

5

1

1

1

2

3

2

3

2

1

2

5

2

4

2

2

2

3

2

1

2

1

2

5

10

2

5

4

13

12

11

13

1

1

1

5

1

1

5

1

8

3

1

1

4

2

7

3

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal1468 1011

Cumulative Percentage

Circuit

 very great

 decrease

 great

 decrease

 moderate

 decrease

 small

 decrease

 very small

 decrease

 stay the

 same

 very small

 increase

 small

 increase

 moderate

 increase

 great 

 increase

 very great

 increase

G. Length of Unpublished Opinions If Citation Was Freely Permitted

Citing Unpublished Opinions in Federal Appeals

37
3

1

7

1

2

1

1

3

3

13

2

1

2

2

1

1

4

1

5

4

3

1

3

5

2

1

1

1

1

3

4

2

14

7

11

5

3

3

11

8

9

13

1

3

3

1

1

2

2

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal1468 1011

Cumulative Percentage

Circuit

 very great

 decrease

 great

 decrease

 moderate

 decrease

 small

 decrease

 very small

 decrease

 stay the

 same

 very small

 increase

 small

 increase

 moderate

 increase

 great 

 increase

 very great

 increase

H. Time Preparing Unpublished Opinions If Citation Was Freely Permitted

Citing Unpublished Opinions in Federal Appeals

38
14

5

31

8

6

7

11

4

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal

 no

 yes

Cumulative Percentage

Circuit

I. Problems with Proposed Rule

Citing Unpublished Opinions in Federal Appeals

39
1

1

1

3

7

4

2

5

5

1

1

4

2

6

3

3

5

5

3

3

11

9

8

6

8

7

2

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1468 101135 DC

 a very

 small

 amount

 a small

 amount

 some

 a great

 amount

 a very

 great

 amount

Circuit

Cumulative Percentage

J. Unpublished Citation’s Additional Work

Citing Unpublished Opinions in Federal Appeals

40
1

4

2

1

1

11

3

8

5

10

8

1

5

6

5

13

7

8

3

5

2

2

1

1

3

5

1

1

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1468 101135 DC

 never

 seldom

 occasionally

 often

 very often

Cumulative Percentage

Circuit

K. Unpublished Citation’s Helpfulness

Citing Unpublished Opinions in Federal Appeals

41
11

1

1

1

14

2

4

1

5

5

3

4

4

13

10

12

12

8

1

4

2

3

1

3

2

1

3

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1468 101135 DC

 never

 seldom

 occasionally

 often

 very often

Circuit

Cumulative Percentage

L. Unpublished Citation’s Inconsistency

Citing Unpublished Opinions in Federal Appeals

42
1

4

3

2 1

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1 DC

 much less

 often

 somewhat

 less often

 as often

 as before

 somewhat

 more often

 much 

 more often

Cumulative Percentage

Circuit

M. Frequency of Citation to Unpublished Opinions After Local Rule Change

Citing Unpublished Opinions in Federal Appeals

43
17

4

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1 DC

Circuit

Cumulative Percentage

N. Time Preparing Unpublished Opinions After Local Rule Change

Citing Unpublished Opinions in Federal Appeals

44

 very great

 decrease

 great

 decrease

 small

 decrease

 very small

 decrease

 remained

 unchanged

 very small

 increase

 small

 increase

 great

 increase

 very great

 increase
17

4

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

1 DC

 easier, very

 great change

 easier, great

 change

 easier, small

 change

 easier, very

 small change

 no appreciable

 change

 harder, very

 small change

 harder, small

 change

 harder, great

 change

 harder, very

 great change

Cumulative Percentage

Circuit

O. Work After Local Rule Change

Citing Unpublished Opinions in Federal Appeals

45
24

21

18

21

27

11

35

38

29

26

37

20

36

4

1

4

3

7

1

2

3

5

4

3

2

2

86%

95% 82%

88%

79%

92%

95%

93%

85%

87%

93%

91%

95%

05

10

15

20

25

30

35

40

45

279 Federal1468 101135 DC

 did not

 respond

 responded

Number of Attorneys

Circuit

P. Attorney Survey Response Rates

Citing Unpublished Opinions in Federal Appeals

46
33%

45% 44%

75%

25%

36%

44% 46% 44%

27%

32%

40%

21%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal1468 101135 DC

Q. Wanted to Cite This Court’s Unpublished Opinion

Percent Responding “Yes”

Circuit

Citing Unpublished Opinions in Federal Appeals

47
19%

30%

44%

30%

8%

18%

26%

50%

22%

15%

41%

15%

21%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2 7 9 Federal 1 4 6 8 10 11 3 5 DC

Circuit

Percent Responding “Yes”

R. Wanted to Cite Another Court’s Unpublished Opinion

Citing Unpublished Opinions in Federal Appeals

48
43%

60%

53%

80%

26%

45%

56%

52%

46% 44% 46% 45%

26%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2 7 9 Federal 1 4 6 8 10 11 3 5 DC

Circuit

Percent Responding “Yes”

S. Would Have Cited This Court’s Unpublished Opinion

Citing Unpublished Opinions in Federal Appeals

49
29%

35%

50%

21%

4%

36%

32%

54%

31%

40%

44%

20%

23%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2 7 9 Federal 1 4 6 8 10 11 3 5 DC

Percent Responding “Yes”

Circuit

T. Would Have Cited Another Court’s Unpublished Opinion

Citing Unpublished Opinions in Federal Appeals

50
3.1

3.2

3.6

2.7

3.1

3.5

3.1

3.0

3.2

2.8 2.9 2.9

3.0

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal1468 101135 DC

12345

 substantially

 less

 burdensome

 a little bit

 less

 burdensome

 no appreciable

 impact

 a little bit 

 more

 burdensome

 substantially

 more

 burdensome

 circuit type

 averages

Circuit

Average Burden Rating

U. Impact on Work of New Rule

Cumulative Burden Percentage

Citing Unpublished Opinions in Federal Appeals

51
21%

11%

17% 17%

25%

13%

17%

36%

28%

20%

50%

11%

19%

67%

58%

38%

60% 60%

55% 53% 55%

46%

52% 50%

63%

59%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal1468 101135 DC

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Percent Expressing Support

Circuit

Percent Expressing Opposition

V. Attitude Toward Proposed Rule

Citing Unpublished Opinions in Federal Appeals

52
5,384

3,463

12,365

1,793 1,732

4,698 4,612

3,189

2,656

7,367

3,686

8,810

1,105

0

2,000

4,000

6,000

8,000

10,000

12,000

279 Federal1468 101135 DC

Number of Cases

Circuit

W. Cases Filed in 2002

Citing Unpublished Opinions in Federal Appeals

53
26%

6%

10%

2%

18%

34%

12%

2%

24%

10%

6%

16% 16%

68%

38%

48%

40%

50%

54%

50%

62%

28%

52%

30% 30% 30%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2 7 9 Federal 1 4 6 8 10 11 3 5 DC

 open 

 cases

 docket

 judgments

 unpublished

 opinions

 published

 opinions

Cumulative Percentage of Cases

Circuit

X. Dispositions (with Opinion Rates and Publication Rates)

Citing Unpublished Opinions in Federal Appeals

54
38%

16%

21%

5%

36%

63%

24%

3%

86%

20% 19%

53% 53%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2 7 9 Federal 1 4 6 8 10 11 3 5 DC

 unpublished

 opinions

 published

 opinions

Cumulative Percentage of Cases

Circuit

Y. Publication of Opinions in Closed Cases with Opinions

Citing Unpublished Opinions in Federal Appeals

55
2

1

8

10

1

28

10

5

8

1

13

20

2

2

2

7

10

5

1

10

1

1

2

4

2

4

1

2

9

6

10

82

05

10

15

20

25

30

279 Federal1468 101135 DC

Number of Opinions

Circuit

Z. Very Short, Short, and Other Unpublished Opinions

(dark = very short; medium = short; light = other)

Citing Unpublished Opinions in Federal Appeals

56
43%

14%

67%

48% 50%

93%

0%

100%

31%

42%

5%

81%

95%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal1468 101135 DC

Percentage of Unpublished Opinions

Circuit

AA. Percentage of Unpublished Opinions That Are Very Short

Citing Unpublished Opinions in Federal Appeals

57
38%

22%

40%

30%

34%

40%

36%

12%

32%

24% 22% 22%

28%

42%

34%

50%

46%

40%

54% 52%

22%

46% 44%

32% 34% 34%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal1468 101135 DC

no briefs

brief on one

 side only

fully briefed

Cumulative Percentage of Cases

Circuit

BB. Appeals with Counseled Briefs

Citing Unpublished Opinions in Federal Appeals

58
Supreme Court

22%

Unpublished Opinion

1%

Other Authority

2%

Agency and Arbitrator

4%

Foreign Court

< 1%

State Court

6%

Other Federal Court

1%

Other District Court

3%

Other District Court in Circuit

1%

Originating District Court

1%

Other Federal Appellate Court

17%

Forum Court of Appeals

42%

CC. Authorities Cited

Citing Unpublished Opinions in Federal Appeals

59
53%

18%

25% 23% 22%

27%

46%

30%

45%

26%

40%

18%

24%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2 7 9 Federal 1 4 6 8 10 11 3 5 DC

DD. Briefed Cases with Citations to Unrelated Unpublished Opinions

Percentage of Briefed Cases

Circuit

Citing Unpublished Opinions in Federal Appeals

60
18%

0%

13%

5% 4%

18%

42%

11%

40%

13%

20%

0%

5%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

279 Federal1468 101135 DC

Percentage of Briefed Cases

Circuit

EE. Briefed Cases with Citations to Unrelated Unpublished

Opinions by the Deciding Court

Citing Unpublished Opinions in Federal Appeals

61
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63

VI. Appendices
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65

Appendix A:

Judges’ Predictions of Problems

Posed by Citations to Unpublished Opinions

We asked judges in the restrictive circuits (the Second, Seventh, Ninth, and

Federal Circuits) whether a rule allowing the citation of unpublished opinions would cause problems because of any special characteristics of their

court or its practices. Those who responded “yes” were invited to describe

the relevant characteristics. This appendix compiles their responses.

Responses are organized by major theme: an increase in workload (20

responses), unpublished opinions becoming shorter (13 responses), a concern about the quality of the court’s unpublished opinions (seven responses), the small likelihood that citations to unpublished opinions would

be helpful (six responses), a concern about increased time to resolve cases

(five responses), a concern that unpublished opinions might come to be

regarded as precedential (three responses), an observation that the rule

change would be advantageous to the government (one response), and

other thoughts (eight responses). A few responses covered more than one

theme and are cross-referenced accordingly.

We present the judges’ responses anonymously and essentially verbatim, with some copyediting. Each response is identified by circuit and ordinal position in this report. So response 7–4 is the fourth response here

from a Seventh Circuit judge.

1. Second Circuit

Fourteen Second Circuit judges said that citations to their court’s unpublished opinions would create special problems; six judges said that they

would not. Three judges did not return an answer to this question. (One

judge who said that citations to unpublished opinions would create problems did not elaborate.)

a. Unpublished Opinions Would Become Shorter

Three judges predicted that unpublished opinions would become shorter if

they could be cited.

J2–1. Presently, we prepare unpublished opinions that carefully respond to the issues raised on appeal, but are not as extensive or workintensive as published opinions. If unpublished opinions are citable, there

will likely be two effects. In most cases the unpublished opinions will be

reduced to a bare minimum. This will have the effect of depriving litigants

of the general reasoning of the dispositive decision and perhaps make it
Citing Unpublished Opinions in Federal Appeals

66

more difficult for the litigant to seek further review whether by rehearing

or by petitioning the Supreme Court. In some cases, the result could be the

opposite—a greater expenditure of time and effort than would otherwise

be the case to create a more fulsome unpublished opinion that approaches

the kind of effort required by a published opinion. If the rule were applied

retroactively, there would be an impairment of the circuit’s corpus juris as

unpublished opinions never intended for citation could be included in

briefs. The Second Circuit would vastly prefer to decide on its own

whether unpublished opinions are citable as opposed to having the issue

decided for the court by outsiders.

J2–2. If unpublished opinions are citable, two different effects are foreseeable. In most cases, the unpublished opinion will be reduced to a bare

minimum. This will deprive litigants of the general reasoning provided in

our unpublished opinions up to now, and perhaps make it more difficult

for a litigant to seek further review. In other cases, the result may be just

the opposite; more care and effort than necessary may be expended in

making these opinions more like published opinions, at the expense of

scarce judicial time and resources. One should ask: what has been the purpose of unpublished opinions up to now? The purpose, as our circuit has

regarded it, is to make clear to litigants and counsel what the basis of the

court’s decision is, and to show in summary fashion that the panel has considered each and every point argued by each side. Unpublished opinions

are appropriate when existing precedent governs the issues raised. If made

citable, both virtues of the unpublished opinion—its clarity and its economy—may be undermined.

J2–3. The proposed rule would endanger the practice of giving a reasoned decision in all cases, because it would lead to useless one-line orders.

b. Unpublished Opinions Are Not Helpful in Other Cases

Three judges observed that citations to unpublished opinions are unlikely

to be helpful.

J2–4. Our guideline for the use of unpublished summary orders restricts them to cases adequately covered by pre-existing precedent. Our

rule of practice does not permit citation to summary orders as authority for

a proposition of law (although they may of course be cited with reference

to the disposition of the particular case). We consider this practice highly

beneficial to the quality of justice in our circuit for the following reason.

Our judges, like others elsewhere, are over-worked and are putting in long

hours. Realistically, they cannot really work longer hours; changes would

simply affect allocation of judges’ time. Under our present practice, we devote little time to the explanations in summary orders because their noncitability limits their potential to cause harm. Consequently, our judges can

devote more time to the published opinions, that is to say, to the cases that
Citing Unpublished Opinions in Federal Appeals

67

play a significant role in shaping and explaining the law. If unpublished

orders become citable, we would need to worry lest a carelessly written

passage of a summary order cause problems. Our judges would be compelled to take substantial time away from the opinions that are important

to the development of the law, devoting that time instead to the cases that

have little or nothing to say about the law. Since summary orders are properly used only in cases adequately covered by existing precedent, counsel

have little need to cite them. The desire to cite them arises primarily in circumstances where the order—prepared in haste—said something ill advised, which would not have been said had the order been citable. Allowing them to be cited would serve little useful purpose but would cause a

wasteful misallocation of judicial time—taking valuable time away from

the difficult task of getting it right in the opinions that play a role in shaping and explaining the law.

J2–5. (a) Since summary orders are never pre-circulated to the full

court and do not appear as slips, judges who were not on the panel have no

opportunity ever to know what they say. So I’d be disinclined to give a

summary order cite any weight. I worry that litigants will be lulled into

relying on material that the judges will not credit or consider. (b) Summary

orders do not purport to state all the facts and circumstances that bear

upon the result. Ordinarily, they say that “the parties are assumed to be

familiar with the facts, procedural history, and the appellate issues presented.” (c) Sometimes a summary order is indicated because the briefing

is so poor that the salient issues are not raised, the best precedents are

omitted, or the issue is scrambled. While I do research, I’m not willing to

do the lawyering for any party; so a summary order is often unhelpful

even if the issue is ostensibly interesting.

J2–6. Because of the volume of cases heard by this court, fact-bound,

non-precedential decisions are best handled in summary fashion. Citation

of the orders out of their factual context would be misleading.

c. Increased Workload

Three judges predicted that citations to unpublished opinions would increase judges’ workload. (In addition to comments J2–7 and J2–8, see comment J2–4.)

J2–7. More work with no benefit to the cause of justice. Anything

worth saying to those other than the parties and trial lawyers should end

up in a per curiam or other published opinion.

J2–8. Such a rule would greatly delay the resolutions of cases and add

considerably to our workload.
Citing Unpublished Opinions in Federal Appeals

68

d. Disposition Time

Three judges predicted that if unpublished orders could be cited, it could

take the court longer to resolve the cases in which they are issued. (In addition to comments J2–9 and J2–10, see comment J2–8.)

J2–9. Speedy disposition of cases, a characteristic of this court, would

be affected.

J2–10. A characteristic of our court is to issue summary orders

promptly.

e. Quality of Unpublished Opinions

One judge expressed concern about the quality of the court’s unpublished

orders. (See comment J2–4.)

f. Other Thoughts

Three judges had other thoughts.

J2–11. Our summary orders are generally quite detailed. I am sure

much of that is because 20% of our cases are pro se and we are the only circuit to allow pro se litigants to argue.

J2–12. It would harm the collegiality of the court, because of strong

differences in opinion as to how summary orders should be prepared.

J2–13. Our court uses staff decision making far less than other circuits.

2. Seventh Circuit

Only five Seventh Circuit judges said that citations to their court’s unpublished opinions would create special problems; seven judges said that they

would not. Four judges did not return an answer to this question. (Comment 7–5 below comes from a judge who said citations to unpublished

opinions would not create special problems.)

a. Unpublished Opinions Would Become Shorter

Three judges predicted that unpublished opinions would become shorter if

they could be cited.

J7–1. If attorneys were allowed to cite unpublished orders in our circuit, it would immeasurably increase the amount of time spent by judges in

reviewing the draft orders of the staff law clerks, who do not usually operate under the direct supervision of a judge. One reason it would take a

great deal more time is because each and every case citation would have to

be verified more thoroughly than is now done in the Rule 34 cases (cases

decided on briefs without oral argument) and short argument cases (ten

minutes). These cases are routinely handled and include the proposed
Citing Unpublished Opinions in Federal Appeals

69

judgment and sentencing recommendation sent to us for review, modification, approval, or declination. Because of the large volume of the same, the

publication time of these orders, as well as the time allotted to the orally

argued cases, would be impacted and thus interfere with the present

caseload flow. If every case, in effect, were to be treated as a polished,

thoughtfully considered published opinion, I am confident that this circuit

might well have to seriously consider limiting the number of cases heard

on oral argument as well as the time allotted for each case. This is because

precious time and resources will be taken from an already overburdened

caseload and allocated to the Rule 34 and short argument matters. Thus,

the court may be forced to adopt the procedure of issuing cursory, one-line

orders in many cases as some other circuits have done, rather than our present procedure of issuing well reasoned, cited, and thoughtful extensive

and thorough opinions. The result would be detrimental to the court system, judges, litigants and the bar, and I seriously urge that the judicial

authorities considering this question give serious consideration before

adopting the procedure of allowing the citing of unpublished orders in this

circuit.

J7–2. I oppose citing unpublished opinions/orders. We have too many

published ones as it is. Our orders now are quite detailed. I will do shorter

ones—e.g., “the evidence is sufficient,” etc.—if they are going to be cited

back to us.

J7–3. We provide a full statement of reasons in all cases—no one-word

affirmances. We could not continue the practice if all our opinions could be

thrown back in our faces.

b. Unpublished Opinions Are Not Helpful in Other Cases

Two judges observed that citations to unpublished opinions are unlikely to

be helpful.

J7–4. In general, the “unpublished” dispositions in the Seventh Circuit

are detailed, factually intensive treatments of a subject. Generally also, they

represent applications of such well established standards as the McDonnell

Douglas test, substantial evidence review of Social Security or immigration

rulings, or Anders review of a criminal appeal. Finding the hidden advance

in the law will be a search for a needle in a haystack. It is also quite unnecessary, given the percentage of opinions that are published in this circuit,

which is in turn a direct consequence of our policy to grant oral argument

in all fully counseled cases. Later publication of “unpublished” orders has

been an adequate corrective for the occasional slip.

J7–5. Citing unpublished opinions (orders) will not facilitate the resolution of cases nor improve the quality or uniformity of circuit law.
Citing Unpublished Opinions in Federal Appeals

70

c. Quality of Unpublished Opinions and the Slippery Slope

to Precedent

One judge expressed concern about the quality of the court’s unpublished

orders and predicted that allowing citation to unpublished opinions could

ultimately result in their being precedential.

J7–6. If we are going to cite “unpublished” opinions, we might as well

publish everything. Non-argued cases with little or no merit deserve no

more than short orders, and snippets from them should not have precedential value. In our circuit, staff attorneys prepare routine drafts that judges

approve but do not research or write. These definitely should not be available for citation.

d. Increased Workload

One judge predicted that citations to unpublished opinions would increase

judges’ workload. (See comment J7–1.)

3. Ninth Circuit

Thirty-one Ninth Circuit judges said that citations to their court’s unpublished opinions would create special problems, 11 judges said that they

would not, and one judge said that he did not know. Four judges did not

return an answer to this question. (One judge who said that citations to

unpublished opinions would create problems did not elaborate.)

a. Increased Workload

Fifteen judges predicted that citations to unpublished opinions would increase judges’ workload.

J9–1. Our local rule contemplates a memorandum disposition of a

paragraph or two—the result and the reason. Changing this practice to a

published disposition would put pressure on the court to expand the dispositions into more substantive recitations. Simply because we issue an

unpublished disposition does not mean that we do not spend considerable

time reviewing the record and reviewing the case. However, many cases

do not merit an extensive explanation. Switching to citable dispositions

will definitely increase the workload of already very busy judges. Finally,

there is no need for citation. We ran an experimental citation approach, and

attorneys did not find occasion for citation. Our limited citation rule addresses key issues concerning res judicata, circuit splits, etc.

J9–2. Because of the great caseload of the Ninth Circuit, the Ninth Circuit would be particularly impacted. Also, because 37.5% of our case volume is immigration cases, “publishable” case memos would have to be

more carefully checked against earlier rulings to avoid intra-circuit splits in
Citing Unpublished Opinions in Federal Appeals

71

what tend to be repetitive situations. I may be repeating what I said earlier,

but the more experience I have on this court, the more grateful I am that

unpublished dispositions are not citable. Oh, I almost forgot. Often we do

not call a case for a vote for a rehearing en banc because, although wrongly

decided by the panel, it does not involve Rule 35 and Rule 40 issues. And it

will only affect the parties. If all memorandum dispositions are to be cited,

the number of en banc calls will surely rise.

J9–3. Currently my court issues very brief unpublished opinions. The

parties are aware of the facts. If there is no disagreement among the parties

concerning the appropriate standard of review, or the applicable law, we

generally omit reference to the citations supporting these principles. If

those opinions are now to be published, we will be required to set forth the

relevant facts and discuss principles of law that are not in dispute so that

counsel will be able to determine whether the unpublished opinion is pertinent or distinguishable.

J9–4. We assume unpublished memoranda are addressed only to the

parties, who know the history and the facts of the case. We only state what

we decide and why. If they were citable, then we would have to assume

they are written to the public at large and describe the history and facts,

and this would increase dramatically the time involved in preparing them.

Also, the issues decided and why might have to be explained in more

depth.

J9–5. The practice in our court with respect to unpublished opinions is

to make them very brief with no recitation of the facts, the standard of review, etc., unless they are directly at issue. We assume that the unpublished opinions are for the parties and that this information need not be

part of the disposition. If publication is involved and citation is permitted,

we write for the general public, a much more time-consuming process.

J9–6. This is a very large circuit. It should have been divided many

years ago. To permit citations to unpublished opinions will increase the

burden on the court very significantly. The solution is to create two or

more circuits out of the geographic monster of the Ninth. It is a remnant of

a sparsely populated west. That west is now heavily populated. The time for

restructuring is now.

J9–7. Right now, neither the lawyers nor the judges need to pay any

attention to unpublished dispositions. If they can be cited, that would

change. Much time could be required to address unpublished dispositions,

all of which time would be wasted, in my opinion. I have yet to see any

meaningful explanation of either the necessity or benefit of citing unpublished opinions.

J9–8. I am not sure how special this characteristic is in relation to the

problem, but here it is: We have a much higher case volume than other circuits. (Not per judge, but overall.) That will mean a huge number of previ-
Citing Unpublished Opinions in Federal Appeals

72

ously uncitable memorandum dispositions will be citable. More work for

us, and a lot more work for the lawyers.

J9–9. We are already laboring under a back-breaking caseload. The

immigration caseload continues to expand. Having to spend more time

reading and researching cases when the caseload is already extremely

heavy would create an additional burden on chambers.

J9–10. Some judges and panels may increase the time they put in on

unpublished opinions. At present, unpublished opinions get less work by

some judges. I think allowing citation of unpublished opinions will dramatically increase the work of the circuit.

J9–11. About one-half of our unpublished dispositions are written by

central staff attorneys (not elbow clerks). Judges review them minimally,

mostly for result. That practice could not be maintained.

J9–12. Probably it would cause more burden with our already excessive caseload, because many judges would write longer dispositions.

J9–13. The number of unpublished opinions is great, and it would require substantially more time to complete opinions.

J9–14. It would probably greatly interfere with our screening program

and cripple our productivity.

J9–15. Much more attention to the facts of the case would be required

to provide a context.

b. Unpublished Opinions Would Become Shorter

Five judges predicted that unpublished opinions would become shorter if

they could be cited.

J9–16. In my circuit there is a clear distinction between precedential

and non-precedential. We believe it is important to inform the parties of

the reason for the decision without worrying about some phrase unintentionally being a cloud on the precedent of the circuit. That is why I believe

the rule change would result in shorter, less explanatory dispositions. I

hope it will not lead to simple judgment orders as in some other circuits.

J9–17. Because prior memorandum dispositions were written with the

clear understanding that they had no precedential value, changing the rule

now means that underlying assumption was wrong. I would have written

such dispositions quite differently, and far more tersely, had I known the

rule would be undermined by the proposed change now under consideration.

J9–18. Given our large volume of cases, the only way to avoid an increased burden of writing “publishable-quality” dispositions will be to revert to extremely summary format; otherwise our “published” opinion

backlog will increase. I would therefore opt for very summary dispositions.
Citing Unpublished Opinions in Federal Appeals

73

J9–19. Most of our judges share bench memos, which tend to be fairly

long. Often the bench memos are converted into unpublished dispositions

without much change. Obviously, they would have to be pared down substantially if they were to become citable.

J9–20. I would try to say as little as possible in all unpublished opinions. This would result in a considerable disservice to lawyers and litigants. The volume of our work leaves little alternative, however.

c. Quality of Unpublished Opinions

Two judges expressed concerns about the quality of the court’s memorandum dispositions.

J9–21. We have two kinds of unpublished decisions—those issued in

calendared cases before regular panels (not all of which are argued), and

those issued in “screening” cases, in which drafts are prepared by central

staff and approved by three-judge panels after oral presentations and brief

reviews of documents. I would be comfortable having the first group cited,

as long as they are not precedential, because a substantial amount of

chambers work, by both law clerks and judges, go into them. As to the second group—screened cases—the dispositions are exceedingly short, and I

have much less confidence in whatever reasoning does appear. Allowing

them to be cited would be pointless, as they would (I hope) never be “persuasive” on any issue. Thus, while I hope someday to persuade my court to

allow citations to the first kind of disposition, we need to have autonomy

to accommodate our own practices.

J9–22. Our dispositions that come out of our screening panels in large

volume are essentially right as to result, but somewhat short on reasoning.

d. Disposition Time

Two judges predicted that if unpublished orders could be cited, it could

take the court longer to resolve the cases in which they are issued.

J9–23. The sheer volume of cases precludes this rule as being a viable

solution to whatever perceived problem the rule purportedly addresses. It

would also preclude us from handling the hundreds of cases a month

through screening sessions. I truly believe that our length of time from filing to disposition would grow exponentially and that we would never

catch up.

J9–24. Some judges would AWOP (affirm without opinion) more

cases. Some would devote hours to fine-tuning, revising, and researching.

Delay in filing would ensue.
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e. Unpublished Opinions Are Not Helpful in Other Cases

One judge observed that citations to unpublished opinions are unlikely to

be helpful. (See comment J9–1.)

f. Slippery Slope to Precedent

One judge predicted that allowing citation to unpublished opinions could

ultimately result in their being precedential.

J9–25. To increase the number of citable decisions, even nonprecedential ones, given the number of precedential decisions we have,

would exacerbate the problem of size. Neither lawyers nor law clerks can

be expected to appreciate the difference between citable-precedential and

citable-persuasive, so citable-persuasive dispositions will slither into being

precedential. We lack the resources to give 10,000 dispositions the same

attention and scrutiny as precedential opinions must have; all that is necessary is for three judges to agree on the disposition, not each word, but if

dispositions can be cited for some kind of value that should change. If they

do not have any value, what is the point of citing them? Bottom line: it is a

back door way to make everything precedential.

g. Other Thoughts

Five judges had other thoughts.

J9–26. Although I personally support allowing the citation of unpublished decisions as persuasive (not binding) authority, the opposition on

our court is such that it would cause many judges to alter their writing

method.

J9–27. We try to tell the parties why we decided what we decided,

with a bit of a nod to the record. But truly 99.9% of the unpublished cases

do not decide any law or provide new factual insights.

J9–28. Problems with citations to unpublished opinions in this circuit

arise from our volume of cases and our practice of writing detailed unpublished dispositions to inform the parties.

J9–29. It would increase the volume of citable cases by a factor of 5 or

6 to 1. We only allow citation of about 18% of all dispositions on the merits.

J9–30. Our circuit provides fewer opportunities to compromise and

reach consensus. In some cases rifts would be magnified.

4. Federal Circuit

Eight Federal Circuit judges said that citations to their court’s unpublished

opinions would create special problems; four judges said that they would
Citing Unpublished Opinions in Federal Appeals

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not, and two judges said that they did not know. Two judges did not return an answer to this question.

a. Quality of Unpublished Opinions

Three judges expressed concerns about the quality of the court’s nonprecedential (unpublished) opinions.

JF–1. We are a national court. Thus, barring unusual intervention by

Congress or the Supreme Court, we establish national rules. We therefore

would have to be even more careful than we now are with each statement

we make in an opinion so that what is cited back to us does not unintentionally preclude the proper resolution of later cases. And, frankly, it is

very possible, even likely, that once non-precedential opinions become citable, a move will ensue to make them precedential. Thus, what we originally write with the understanding that it is non-precedential, albeit citable, may become precedent as well.

JF–2. Many of our non-precedential opinions are in pro se appeals by

federal employees from decisions of the Merit Systems Protection Board.

Because these cases are often poorly briefed, it is easy to miss potentially

important legal issues or to make statements in opinions that, with better

briefing, would likely not be made. Allowing citation of these decisions

would add to the clutter of briefs and suggest that the court has reached

considered decisions on particular issues when in fact that is often not true.

JF–3. The majority of our jurisdiction is exclusive. We circulate all

published panel opinions to the whole court for comments before they are

released and all members of the court carefully review them. Counsel

should not be able to cite opinions that have not been through that process.

b. Unpublished Opinions Would Become Shorter

Two judges predicted that unpublished opinions would become shorter if

they could be cited.

JF–4. All opinions are “published” in one form or another—what we

are talking about is non-precedential opinions. If our non-precedential opinions could be cited, then the pro se petitioners would get less useful opinions; there would be more summary affirmances; and non-precedential citations would only clutter up the briefs. A terribly short-sighted idea.

JF–5. If attorneys could cite our non-precedential opinions, I would

push for summary dispositions or have non-precedential opinions say as

little as possible.
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c. Slippery Slope to Precedent

Two judges predicted that allowing the citation to unpublished opinions

could ultimately result in their being precedential. (In addition to comment

JF–6, see comment JF–1.)

JF–6. First, we have many complex patent cases that are best resolved

by non-precedential opinion. Second, the law develops in a more orderly

fashion when some cases are not made precedential.

d. Increased Workload

One judge predicted that citations to unpublished opinions would increase

judges’ workload.

JF–7. Courts that favor the citation of non-precedential opinions employ legions of staff attorneys to process them, while in this court nonprecedential opinions are handled in chambers. In light of budgetary constraints, the central staffs of courts can be expected to decline, and the work

returned to chambers where it belongs. I would expect this to affect the

views of the proponents of a new role.

e. Government Advantage

One judge predicted that permitting citations to unpublished opinions

would provide the government with an advantage.

JF–8. The government is a party to most appeals here and can fully

read non-precedential opinions. It will have many more opinions to cite in

briefs under a revised rule.
77

Appendix B:

Attorneys’ Thoughts on the

Impact of the Proposed Rule

Attorneys were asked what impact they would expect to result from the

proposed lifting of restrictions on citation to unpublished opinions. Although attorneys were not asked explicitly whether they would support or

oppose the proposed rule, their support or opposition was often apparent

from their answers. Of the 307 attorneys who answered this question, most

were supportive of the proposed rule (169, or 55%), many were neutral (75,

or 24%), and many opposed the proposed rule (63, or 21%).

We classified the attorneys’ responses by theme and sub-theme: the

availability of additional authority (more authority, bias, more work, already reviewed), the usefulness of unpublished opinions (strategy, not

precedent, not useful, poor quality, good quality), access to unpublished

opinions (accessible, less accessible), impact on the court (more consistency, less consistency, higher quality opinions, shorter opinions, longer

opinions, delay), and broad policy issues (accountability, a blurred distinction between published and unpublished opinions, whether opinions

should ever be unpublished). Several comments fell into more than one

category.

The comments are compiled here. Generally comments falling into

more than one category are compiled in the category with the fewest comments. Generally supportive comments are presented before neutral and

opposing comments, with longer comments presented first.

We present the attorneys’ responses anonymously and essentially

verbatim, with some copyediting. Each response is identified with an “A”

for attorney and a number for ordinal position in this report. So, for example, response A–148 is the 148th attorney response presented here.

1. The Availability of Additional Authority

Many attorneys commented on the implications of having a substantial

amount of additional legal authority to cite. Ninety-three attorneys saw

this as having access to additional valuable resources, but four attorneys

worried about bias in the additional authority. Thirty-three attorneys observed that a substantial amount of legal authority to cite entails a substantial amount of additional work, but seven attorneys said that they already

review the unpublished opinions anyway.
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a. More Authority

Ninety-three attorneys observed that the ability to cite unpublished opinions gives them more options in the way of authority to support their arguments. Most of these attorneys (84) were supportive of the new proposed rule; nine were neutral. In addition to the attorney comments compiled here, 25 other attorneys mentioned more authority: attorneys A–73

(supportive), A–75 (neutral), and A–76 (neutral) (comments compiled under 1.c. More Work); attorneys A–89 (supportive), A–90 (supportive), A–91

(supportive), and A–92 (supportive) (comments compiled under 1.d. Already Reviewed); attorney A–99 (supportive) (comment compiled under 2.a.

Strategy); attorneys A–101 (supportive), A–102 (supportive), A–104 (supportive), A–107 (neutral), and A–108 (neutral) (comments compiled under

2.b. Not Precedent); attorney A–123 (supportive) (comment compiled under

2.c. Not Useful); attorney A–154 (supportive) (comment compiled under 3.a.

Accessible); attorneys A–173 (supportive), A–176 (supportive), and A–177

(supportive) (comments compiled under 4.a. More Consistency); attorney A–

193 (supportive) (comment compiled under 4.b. Less Consistency); attorneys

A–197 (supportive), A–198 (supportive), A–201 (supportive), A–203 (supportive) (comments compiled under 4.c. Higher Quality Opinions); attorney

A–214 (supportive) (comment compiled under 4.f. Delay); and attorney A–

227 (supportive) (comment compiled under 5.b. Blurred Distinction).

A–1 (supportive, Tenth Circuit). I am in favor of a new Federal Rule of

Appellate Procedure uniformly allowing citation of unpublished opinions.

Such a rule would promote consistency and eliminate the maddening

situation where, as a litigant, you have found a case directly on point, but

are unable to cite it. Although the Tenth Circuit—where I practice predominantly—has a fairly lenient rule on citation of unpublished opinions,

the Ninth Circuit, for example, has a much harsher rule. I have been in the

frustrating position in district courts of the Ninth Circuit where I am forbidden from citing an unpublished Ninth Circuit case to the district

court—authority which presumably would be quite persuasive, if not dispositive. Although courts and commentators frequently state that unpublished opinions only deal with propositions that can be found in published

decisions, I have not found that to be the case. Even when that is true to

some extent, fact patterns are always different and sometimes critical. An

unpublished decision is self-evidently so; even if not binding, I have never

understood the rationale behind not being able to cite it at all.

A–2 (supportive, Seventh Circuit). Such a rule would be helpful in two

respects in particular. In some cases, such a rule would permit citation to

the court’s most recent application of a settled rule, making it clear that earlier published decisions are still good law and have not been superseded

by more recent decisions. This would be helpful where the court has begun

issuing unpublished decisions after issuing a series of published decisions
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on the same topic, and the most recent published opinion is several years

old. In other cases, such a rule would permit citation to cases involving

similar or identical facts. This would be helpful in cases in which all of the

court’s published decisions on a particular issue may be distinguished

based on their facts, whereas, in an unpublished decision, the court has

applied the same legal rule to facts similar or identical to those involved in

the case pending before the court.

A–3 (supportive, District of Columbia Circuit). My practice has been

almost exclusively in the U.S. Court of Appeals for the D.C. Circuit. I

would expect little impact overall, in terms of numbers of cases impacted

by the change. However, I would expect the rule to have a beneficial impact with respect to certain cases. I have experienced instances (before the

rule in the D.C. Circuit was changed in Jan. 2002 to permit citation to unpublished opinions issued by that circuit) where the only case comparable

to the issue I was addressing involved an unpublished opinion, or where

an unpublished opinion would have been a useful example of an additional comparable situation, but I could not bring this to the court’s attention, because the rule barred citation to unpublished opinions. I believe

both my client (the federal government) and the court were ill served by

the rule in these instances.

A–4 (supportive, Seventh Circuit). I think it would be very helpful. It

is difficult to predict the future, so judges who order an opinion to be unpublished cannot foresee what effect that opinion would have in the future.

In other cases, I have found unpublished opinions to be directly on point

with my issue, but I could not cite them.

Many years ago, the Illinois Appellate Court would direct that only

“abstracts” of opinions be published, which turned out to be the West

headnotes. There have been more than a few times when one of these “abstracts” was directly on point with my issue. You get the idea.

In the long run, publishing all opinions is better for the profession, because it provides a better basis to obtain on-point precedent. To save space,

perhaps “non-published” opinions should only be available online.

A–5 (supportive, District of Columbia Circuit). I suppose that I would

favor permitting citation to unpublished opinions, as there is just a chance

that one of these “red-headed stepchildren” will contain the nugget of wisdom that will guide the court to a correct decision.

The case I was selected for was an unusually weak case for the plaintiffs and appellants, so it did not present any difficult legal questions that

might have prompted us to research unpublished opinions. As I recall, it

was decided without argument and resulted in an unpublished decision

(which always feels anticlimactic). I think that most opinions should be

published and that the issuance of non-precedential decisions is hard to
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justify, but I honestly do not think that this case would give much guidance

to anyone.

A–6 (supportive, Second Circuit). I expect that the impact would be a

favorable one from the perspective of an office such as mine (United States

Attorney’s Office). In many appellate cases, it would be useful to bring

other similar cases to the court’s attention, even though they are unpublished. This did not apply to the appellate immigration case that is the subject of this survey because there is now a wealth of published immigration

case law in this circuit and others. I am not aware of the percentage of lawyers who do not have access to unpublished opinions through Westlaw,

Lexis, or another computerized service, although lack of access problems

could be addressed to some extent by requiring a party who cites to an unpublished opinion to provide a copy of it.

A–7 (supportive, District of Columbia Circuit). In my experience, I occasionally find an unpublished decision that is the closest precedent for the

case on which I am working. The ability to cite the unpublished decision

could facilitate our presentation of the argument in such an occasional

situation. But many times I find that the unpublished decision is cumulative to many other published decisions on the same or similar point. And

the unpublished decision itself may cite and rely on an earlier, published

decision that may be cited without limitation. The D.C. Circuit has modified its local rule to permit citation of its unpublished decisions issued after

Jan. 1, 2002. In a sense, the proposed national rule would not have much

impact on our practice.

A–8 (supportive, Eleventh Circuit). I do not believe such a rule change

would have an appreciable impact in the Eleventh Circuit, in which I practice, since such citations are currently citable—although not binding, of

course. In those circuit courts of appeal that currently prohibit citation to

unpublished decisions, the proposed rule change would have an impact, I

believe. Advocates would be inclined to research and cite such unpublished decisions, where before they did not. I think it would enhance the

breadth and quality of briefs, since persuasive, well-reasoned, unpublished

decisions could provide further logical and policy arguments for both

counsel and appellate courts to ponder in fashioning arguments and decisions, respectively.

A–9 (supportive, Tenth Circuit). I expect that the proposed rule would

have a tremendous impact on the litigants and the courts. In my practice, I

often read unpublished cases that support a position favorable to my client.

Sometimes an unpublished case is the only available source to support a

particular position for my client. In such an instance, a rule permitting citation to courts of appeals’ unpublished opinions would provide me with the

opportunity to support my client’s position with some authority. It would
Citing Unpublished Opinions in Federal Appeals

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promote a fair outcome of the proceedings because litigants would be

permitted to more fully advise the court of similar cases.

A–10 (supportive, Second Circuit). Such a rule would be helpful.

There have been instances in which a new governing rule has been established in an unpublished opinion, and instances in which an established

precedent has been applied to facts identical to those in a case we have

been handling. Indeed, in some instances we have moved to publish because the opinions would apply to many of our cases. The availability of

these opinions would assist in ensuring a uniform jurisprudence in the circuit and would be useful to litigants to have more persuasive authority to

cite.

A–1161 (supportive, Second Circuit). Such a rule would be helpful.

There have been instances in which a new governing rule has been established in an unpublished opinion, and instances in which an established

precedent has been applied to facts identical to those in a case we have

been handling. Indeed, in some instances we have moved to publish because the opinions would apply to many of our cases. The availability of

these opinions would assist in ensuring a uniform jurisprudence in the circuit and would be useful to litigants to have more persuasive authority to

cite.

A–12 (supportive, District of Columbia Circuit). My impression is that

unpublished cases can be useful and there would be no detrimental effect

in citing to them (as long as the unpublished status is noted in the citation).

Although I have not studied the issue, I feel like unpublished cases sometimes make explicit generally assumed legal principles that otherwise are

not cited or discussed (this especially seems to be the case in unpublished

opinions deciding matters brought pro se).

A–13 (supportive, First Circuit). I think the rule would have a salutary

effect. When an unpublished opinion is squarely on point, particularly one

from the same circuit, it is eminently sensible to permit its citation. More

than once I have been precluded from citing and discussing a persuasive

and well-reasoned unpublished opinion that is on all fours, or close to it,

with the case being briefed. As long as the parties understand the precedential limitations of unpublished opinions, their citation should be permissible.

A–14 (supportive, Eleventh Circuit). I believe the ability to cite unpublished opinions would be helpful. Many times legal analysis by appellate

courts on a new issue, or slightly new issue, is useful to the parties and the

courts. If parties are permitted to cite law reviews, they should be able to

cite unpublished opinions, which are likely more useful. The reason I did

 

61. Attorneys A-10 and A-11 submitted survey responses with identical text.
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not cite or would not have cited unpublished opinions in my case was because the area of law had already been thoroughly vetted.

A–15 (supportive, Tenth Circuit). I think such a national rule permitting citation to unpublished opinions would be especially useful, particularly in some areas of the law where, for whatever reason, published opinions are as a rule exceptionally rare. This is particularly true in the context

of habeas appeals under 28 U.S.C. § 2255 with respect to which there is a

surprising dearth of “published” authority. I am, in other words, very

much in favor of the proposed new rule.

A–16 (supportive, First Circuit). It would allow attorneys to cite to

cases that may be factually closer to the matter on appeal but that have not

been deemed important enough by the court to be published. There are

many unpublished cases that contain nuggets of holdings that have not

been articulated in published opinions and that fit squarely and are dispositive of issues that are still litigated below for lack of a definitive ruling in

a published opinion.

A–17 (supportive, Eighth Circuit). It would be of significant value.

Whether the opinion is published or unpublished, it is still the opinion of

the appellate court and has some value. I have experienced a number of

occasions where I could not locate a published opinion that is as squarely

on point on a specific issue as any unpublished opinion. A less restrictive

rule on the citation to an unpublished opinion would be of value and is

recommended.

A–18 (supportive, District of Columbia Circuit). I believe the proposed

rule would improve decision making and briefing. Often unpublished decisions have salient analysis that should be brought to the court’s attention.

As a practitioner, it is frustrating to find a recent unpublished decision directly on point, and not to be able to cite the decision. As a practical matter,

“unpublished” decisions are being published anyway.

A–19 (supportive, Eighth Circuit). I believe the proposed rule would

be beneficial to the court in providing the court with all applicable precedent. In a number of cases, language in unpublished opinions addresses an

issue more completely than in published opinions. Being able to cite such

language, particularly from unpublished cases in our circuit, would enhance the arguments made to the court.

A–20 (supportive, Second Circuit). I believe the impact would be to

encourage greater advocacy through citation to cases without precedential

impact but with persuasive merit. The rule, however, should require the

author of the brief to attach a copy of the unpublished decision and to cite

any electronic source for the same (e.g., Westlaw). I strongly support the

proposed new national rule.

A–21 (supportive, District of Columbia Circuit). To the extent that unpublished opinions are non-binding, such a rule would nonetheless permit
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drawing the court’s attention to dispositions of similar cases. This would

essentially operate like an “accord” citation. To the extent that unpublished

opinions are non-binding, there should be no requirement, only permission, to cite to such opinions.

A–22 (supportive, Seventh Circuit). From my own perspective, being

engaged in many habeas corpus cases on appeal, there are some procedural practices that would be reflected in unpublished opinions that would

occasionally be helpful to illustrate through judicial opinions. Short of that,

I’m not sure I would often take advantage of a more lenient rule to this effect.

A–23 (supportive, Seventh Circuit). Any time you expand the universe

of cases on which you can rely, you provide an attorney with more and

presumably better reasoning to present. Since I never saw any real legitimate basis for limiting citations to published opinions (sometimes the unpublished cases are better), I would be happy to see this rule change.

A–24 (supportive, First Circuit). I believe a more lenient rule of citation would be beneficial to my appellate practice, and to the circuit court,

because oftentimes an unpublished opinion will possess an analogous fact

pattern or more clear statement of the law. Even if the opinion is not binding precedent, it can be beneficial to guide the court.

A–25 (supportive, First Circuit). Given the availability of unpublished

opinions on services such as Westlaw, it would allow practitioners access

to cases which may be more on point factually to their own. The ability to

cite these cases should assist in presenting argument in a more cogent and

relevant manner.

A–26 (supportive, Ninth Circuit). The impact would be positive since

frequently there are numerous unpublished decisions from this circuit and

other circuits that are directly on point with the facts of a case. Because the

cases are unpublished, the attorney is constrained from using the cases as

precedent.

A–27 (supportive, First Circuit). It would make it more likely that I

would find cases “on point.” My only concern is that the holdings in these

opinions are (sometimes) not explained as thoroughly as in published

opinions, which could lead to the cases being used improperly (out of context).

A–28 (supportive, Eighth Circuit). I have, in the last two years, seen

approximately three or four unpublished opinions with factual bases directly on point with the facts of my own case. Relaxation of the rule would

aid me in responding to readings when such a thing occurs.

A–29 (supportive, Fifth Circuit). Attorneys may then have access to

additional cases that are on point or close to it. Oftentimes I encounter

cases that resemble the factual pattern of my case, but I am unable to use

the information, because the case is unpublished.
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A–30 (supportive, Second Circuit). While I did not come across useful

unpublished cases during this appeal, I have done so in other cases. I have

never fully understood why such decisions should be off-limits, particularly when they are on point and well reasoned.

A–31 (supportive, Fourth Circuit). To the extent that a court has addressed a particular legal issue, albeit in an unpublished decision, I may be

able to address issues raised by the court through my brief or oral argument in a more direct and thorough manner.

A–32 (supportive, First Circuit). Unpublished opinions can facilitate,

in many instances, the presentation of an argument. Many times the facts

are squarely applicable to the matter under consideration. Often they present authority in a very precise manner.

A–33 (supportive, Third Circuit). This rule would have a positive impact because it might permit additional arguments to be raised to the

court’s attention. The court could then give the unpublished opinion whatever weight it deems appropriate.

A–34 (supportive, First Circuit). Very little, but only positive in my

opinion. It is not unusual for me to want to cite 1–3 such opinions in a brief

in the First Circuit, but I do not because of the rule strongly discouraging it.

A–35 (supportive, Tenth Circuit). It would make analysis of the law

more comprehensive and give the courts better guidance. Some unpublished opinions contain good surveys of an area of law, which should be

helpful to all.

A–36 (supportive, Second Circuit). I think it would be helpful—there

are cases that could be cited that I am unable to cite now (although I’ve

learned to ignore unpublished opinions because I cannot use them).

A–37 (supportive, Sixth Circuit). Greater ability to direct the appellate

court to cases in which similar, but unique or unusual, fact patterns were

handled in a manner consistent with my client’s position.

A–38 (supportive, Sixth Circuit). It would allow practitioners to cite to

more current authority. (It seems as if the amount of unpublished opinions

in the past several years has significantly increased.)

A–39 (supportive, Second Circuit). I would support the new rule.

Judges will give the weight that such decisions deserve. I have always

found it frustrating to see an opinion but not be able to use it.

A–40 (supportive, Fifth Circuit). I occasionally find unpublished

authority from this circuit that would be helpful in supporting arguments

to a district court or appellate panel.

A–41 (supportive, Federal Circuit). I am in favor of this rule. Many of

the circuit’s opinions I deal with are unpublished but are extremely important, because they pronounce new legal principles.
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A–42 (supportive, Sixth Circuit). Such a rule would result in utilizing

more court of appeals precedent in support or opposition to my legal arguments. I would rarely cite to other circuits.

A–43 (supportive, Fifth Circuit). We would have more resources

available along with factual instances or scenarios useful in explaining a

theory we may be either defending or attacking.

A–44 (supportive, Eleventh Circuit). It would widen the pool of cases

available and would give one greater confidence as to the predictability of

the outcome of the court’s decision.

A–45 (supportive, Sixth Circuit). I would expect the proposed rule to

have a positive impact, allowing the citation to additional material without

imposing substantial burdens.

A–46 (supportive, Ninth Circuit). It would allow more comprehensive

understanding of trends in the law in the different courts and allow reference to broader legal analysis.

A–47 (supportive, Ninth Circuit). Allow a lot more case law for the

court to consider, allowing easier references so the court would see what is

happening in other courts.

A–48 (supportive, Third Circuit). It will be of assistance in some cases,

because there are many unpublished opinions that contain useful analysis

of critical issues.

A–49 (supportive, Federal Circuit). In some appeals, it would permit

citations to authorities that are closer to the subject appeal than any of the

citable authorities.

A–50 (supportive, Eighth Circuit). Extremely helpful. The rule would

expand the range of citable precedent and enable the preparation of more

thorough briefs.

A–51 (supportive, Third Circuit). The proposed rule would allow appellate advocates to advance persuasive reasoning from unpublished opinions.

A–52 (supportive, Eighth Circuit). I believe that such a rule would allow the court to be better-informed about potentially relevant case law.

A–53 (supportive, Eleventh Circuit). I think this would be a good rule

change causing few if any problems, but making research a bit easier.

A–54 (supportive, Second Circuit). There would be more law that

could be referenced that might address otherwise unaddressed questions.

A–55 (supportive, District of Columbia Circuit). Slightly more work,

but some unpublished opinions would be of significant value in my cases.

A–56 (supportive, Eighth Circuit). It would enable us to cite a broader

array of case authority. I think it would be helpful.

A–57 (supportive, Eleventh Circuit). It would improve and make more

equitable the access to and use of important decisions.
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A–58 (supportive, Fifth Circuit). I think it could facilitate more thorough treatment of some issues before the court.

A–59 (supportive, Fourth Circuit). I think it would be a good rule.

Sometimes the cases most on point are unpublished.

A–60 (supportive, Tenth Circuit). It would be helpful because the

Tenth Circuit has so many unpublished opinions.

A–61 (supportive, Second Circuit). I would expect such a rule to assist

me in the presentation of my arguments.

A–62 (supportive, District of Columbia Circuit). Such a rule would be

helpful in addressing novel issues of law.

A–63 (supportive, District of Columbia Circuit). Positive. There is useful precedent in them.

A–64 (neutral, Fifth Circuit). The times when we have found it necessary to cite to unpublished dispositions have occurred when there is no

precedent available in our circuit. Indeed, when the Fifth Circuit issues an

opinion on a new issue they have not ruled upon, you will often see them

citing to their own previously unpublished dispositions on the issue.

I cannot imagine such a rule having any appreciable impact on our

side of the fence.

A–65 (neutral, Fifth Circuit). I practice primarily in the Fifth Circuit,

which already has a very workable Local Rule 47.5.4 for citing unpublished

opinions. In my experience, citing to unpublished cases often allows me to

provide the court with a fact pattern similar to the case at bar. In this sense,

it makes my work more effective. Citations to unpublished opinions is neither more nor less burdensome than not citing to them.

A–66 (neutral, Tenth Circuit). None for me, but for the practice across

the country, it would improve appellate practice because parties can cite to

whatever persuasive authority is available. The circuit in which I practice,

the Tenth Circuit, allows citation to unpublished cases as long as they are

attached to the briefs. That is why the proposed rule would have no effect

on my practice.

A–67 (neutral, Third Circuit). Twofold impact. On the one hand, allow

me to cite unpublished opinions in support of my client’s position, and

therefore potentially make my work a little less burdensome in that I have

more chances to find support for my client’s position. On the other hand, it

enables my opposing counsel to do the same thing, thereby making my job

harder.

A–68 (neutral, Third Circuit). It would clear up confusion between the

circuits’ different rules; it will enable citation of persuasive authority; it

will, however, also increase misuse of non-precedential authority; it may

increase the accuracy of judicial dispositions.
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b. Bias

Four attorneys predicted that the additional authority provided by unpublished opinions would have a disproportionate impact on the government.

Two attorneys representing appellants in criminal appeals predicted a disproportionate bias in favor of the government and two attorneys representing the government predicted a disproportionate impact against the government. All four of these attorneys opposed the proposed rule.

A–69 (opposed, Eighth Circuit). A negative impact. It would open the

door to citation of older cases not intended to be authority or cited, and it

would change the nature of future cases resulting in more delay in issuing

otherwise simple decisions. We also believe that most unpublished opinions are weighted heavily toward affirming convictions, which is fundamentally unfair to defense research efforts.

A–70 (opposed, Third Circuit). I do criminal defense work and have

never had occasion to cite or rely on an unpublished opinion. In my experience, most unpublished opinions on the criminal side tend to favor the

government, so the proposed rule would just add more arrows to the government’s quiver.

A–71 (opposed, Seventh Circuit). Besides making the work of attorneys litigating in the federal courts of appeals more burdensome, if it is

applied retroactively, it will have a disproportionately adverse impact on

the government’s litigation. This is because one of the factors used to decide whether the government will seek further review of an adverse decision is whether the decision has been published.

A–72 (opposed, First Circuit). Because I anticipate that defense attorneys would be using them more than we would.

c. More Work

Thirty-three attorneys observed that the ability to cite unpublished opinions would create more work for them. Most of these attorneys (24) opposed the proposed rule, four attorneys supported it, and five were neutral. In addition to the attorney comments compiled here, 17 other attorneys mentioned more work: attorney A–55 (supportive) (comment compiled under 1.a. More Authority); attorney A–71 (opposed) (comment compiled under 1.b. Bias); attorney A–97 (opposed) (comment compiled under

2.a. Strategy); attorneys A–117 (opposed) and A–121 (opposed) (comments

compiled under 2.b. Not Precedent); attorney A–134 (opposed) (comment

compiled under 2.c. Not Useful); attorneys A–139 (opposed), A–143 (opposed), A–144 (opposed), A–145 (opposed), and A–147 (opposed) (comments compiled under 2.d. Poor Quality); attorney A–163 (opposed) (comment compiled under 3.b. Less Accessible); attorneys A–186 (supportive), A–

191 (neutral), and A–192 (neutral) (comments compiled under 4.a. More
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Consistency); attorney A–207 (neutral) (comment compiled under 4.c. Higher

Quality Opinions); and attorney A–211 (opposed) (comment compiled under 4.d. Shorter Opinions).

A–73 (supportive, Seventh Circuit). While it would add to research

time, it would open up available arguments, especially for unsettled or

changing areas of law, such as immigration. I would welcome the change.

A–74 (supportive, Tenth Circuit). More helpful to attorneys doing legal research. It will take longer, but be more useful!

A–75 (neutral, Tenth Circuit). The new rule would make my appellate

work both more burdensome and less burdensome. Legal research would

be more burdensome as I would feel compelled to search for relevant unpublished cases rather than limiting my research to published opinions.

However, when dealing with novel legal issues or fact patterns it would be

helpful to be able to freely cite to unpublished decisions, especially those

from other circuits.

A–76 (neutral, Sixth Circuit). It would be helpful when such an unpublished opinion was favorable, but generally it would put a heavier

burden on a practitioner when he did research to locate and distinguish all

such decisions.

A–77 (opposed, Fourth Circuit). It would probably result in more

frivolous motions and arguments. If we can freely cite unpublished opinions of all circuits many will make motions and objections that they would

otherwise not have made. Many attorneys, especially those who practice

criminal law, will feel they are duty bound to press matters only supported

in unpublished opinions. Not to do so will leave them open to a section

2255 attack. The fact that the unpublished opinions are still not binding

will not change this. The rule change sends a mixed message: the case is not

binding, but you can cite it. But why cite if it’s not binding? How will courts

interpret this? I vote, no change.

A–78 (opposed, Sixth Circuit). In a very few cases with truly “novel”

issues, it may well be helpful in directing the reviewing court to relevant

legal reasoning applied in prior cases as to that unique question. However,

the rule will have the unfortunate effect of opening the floodgates to a myriad of arguments (based on dicta, in many instances) premised on unpublished opinions relative to questions and issues not novel or unique that

have been well settled in prior published opinions, thereby increasing the

burden of drafting appellate briefs, particularly responsive briefs.

A–79 (opposed, First Circuit). Such a change would dramatically increase the time it takes to prepare a brief. I am an immigration attorney

and, as the courts know, there are thousands of such cases pending at any

given time, and thousands of unpublished immigration cases. Increasing

my reason to include all of these cases—which would be the prudent

course to take if both sides may cite them—would be unduly burdensome.
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A–80 (opposed, Tenth Circuit). It might significantly increase research

time, as I would be more inclined to search unpublished opinions for holdings on point. It would not significantly help my arguments because my

circuit’s rules already allow citation to unpublished opinions if it is the

only authority on point. If there is a published case on point, I would not

cite to an unpublished opinion anyway.

A–81 (opposed, Federal Circuit). It would increase the necessary time

dedicated to legal research to locate previously uncited and nonprecedential decisions as well as to locate and review the additional cases

cited by the opposition. This additional research would likely increase the

total cost to the client for preparing appellate briefs.

A–82 (opposed, Fourth Circuit). I would expect such a rule would result in attorneys citing unpublished opinions in an effort to change precedent. Thus, I would anticipate each brief would contain a section that

would argue for a change in precedent, citing unpublished opinions for the

reason for the change.

A–83 (opposed, Ninth Circuit). It will cause confusion and more work

for attorneys, because in some cases unpublished opinions or the reasoning

therein will be inconsistent with other unpublished opinions, and attorneys

will have to spend time reconciling the cases.

A–84 (opposed, Ninth Circuit). It would require much more time to

write each brief—given the sheer numbers of unpublished decisions—to

ensure that you were not in conflict or overlooking something.

A–85 (opposed, Seventh Circuit). Would require additional research

into hundreds more unpublished opinions. Would likely increase the time

necessary to complete any given appeal.

A–86 (opposed, Federal Circuit). More time expended in briefing responses to citations to unpublished opinions by opposing counsel. No appreciable impact upon outcome of appeals.

A–87 (opposed, First Circuit). Would increase the universe of cases to

find and read, create more work, and take longer to write and file briefs.

A–88 (opposed, First Circuit). It would make research take longer.

d. Already Reviewed

Seven attorneys said that they already review unpublished opinions, so the

opportunity to cite them would not entail additional work. Six of these attorneys supported the proposed rule; one was neutral.

A–89 (supportive, Second Circuit). In considering my response to the

survey, it is important to note that in my brief to the U.S. Court of Appeals

for the Second Circuit, I cited one unpublished opinion of the Second Circuit using the Westlaw citation, and a second opinion of the Second Circuit

that is reported in the Federal Appendix.
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Because of the wide reliance on electronic libraries, “unpublished”

opinions are equally as accessible as published opinions. Although unpublished opinions are not considered binding precedent, attorneys generally

believe that they are nonetheless important as they provide a basis for at

least a subtle argument for consistency by the court. Moreover, if the unpublished opinion is premised upon facts and circumstances very close to

those presented by the attorney’s case, then the citation to the unpublished

opinion is viewed as particularly appropriate. For an attorney preparing a

submission, the use of unpublished opinions does not involve any additional work or research, as unpublished opinions necessarily come to the

attorney’s attention during a Westlaw or Lexis computer inquiry.

From the practitioner’s standpoint, unpublished opinions provide an

additional source of reference material. The writer hopes that the use of

unpublished opinions will not be perceived by the judiciary as increasing

its workload by necessitating an increase of effort and care in drafting unpublished opinions.

A–90 (supportive, Fifth Circuit). In theory, opinions are to be unpublished only when the result is in all respects clearly dictated by existing

precedent. In practice, however, judges may have a tendency to use the

unpublished opinion as a mechanism for results-oriented adjudications of

a particular case, comfortable that the analysis in the opinion will not negatively impact the court’s jurisprudence more generally as it applies to other

cases. If the national rule renders all opinions, published and unpublished,

binding precedent, it should curb the tendency for such misuse of unpublished opinions. I would personally favor such a rule.

If the rule merely authorizes citation to unpublished opinions but

leaves in place local rules regarding whether such opinions have precedential value, then in my estimation, the rule will have little impact, beyond

obviously expanding the universe of cases that may be cited in briefs. Practitioners who research electronically (this is the exclusive method for all

attorneys in my firm) are required to cull through unpublished opinions

anyway, as they are included in the federal court of appeals databases of

the major online research companies. So there should be no appreciable

impact on research time. The rule would simply expand the range of cases

that may actually be cited in briefs.

A–96 (supportive, Second Circuit). It would not make the work any

more or less burdensome because most research is done electronically—

pulling up both published and unpublished cases. It would, however, be

beneficial to both the parties as well as the courts (I believe), because it

would provide more reasoned decisions from which to draw from, especially in areas where there are few cases on point. While of course not precedential, additional reasoning is always helpful.
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A–97 (supportive, Tenth Circuit). I believe it would allow for betterreasoned arguments and greater intellectual honesty. Unpublished opinions are readily available on Westlaw and Lexis/Nexis, and I read them,

even though I cannot cite to them. The work level for me is therefore the

same, but it may be a disservice to my client and the court not to be able to

point out to the court that a comparable fact pattern had a certain outcome.

A–98 (supportive, Fifth Circuit). I support the change as proposed. Attorneys in the Fifth Circuit cite them frequently, particularly in cases involving novel issues. Work would be a little less burdensome if we did not

have to attach them to the brief.

A–99 (supportive, Federal Circuit). It will be good because many lawyers cite to unpublished opinions anyway and footnote a justification for

doing so.

A–100 (neutral, Tenth Circuit). I do not believe it would have a significant impact on my work. To some extent it would make research slightly

less frustrating because I would not come across cases that I would be unable to cite.

2. The Usefulness of Unpublished Opinions

Many attorneys commented on how unpublished opinions are used. Four

attorneys discussed strategies for using unpublished opinions even when it

is not permissible to cite them. Twenty-six attorneys observed that unpublished opinions are not precedents, which implies that they would not be

very useful. Another 16 attorneys provided additional comments calling

into question the usefulness of unpublished opinions as authorities. Fifteen

attorneys opined that unpublished opinions tend not to be of as high quality as published opinions in their drafting, but one attorney said that their

quality is good.

a. Strategy

Four attorneys mentioned strategies for bringing unpublished opinions to

the attention of the court when they are not permitted to cite them directly.

Attorney A–96 said that an attorney can cite a decision that the unpublished opinion reviewed so that the citation to the unpublished opinion

appears as part of the subsequent history of the cited decision. Attorneys

A–97 and A–98 suggest that attorneys can simply incorporate the argument

of unpublished opinions without citing them. Attorney A–99 wonders if

this would be plagiarism.

Two of these attorneys supported the proposed rule, one was neutral,

and one opposed it.
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A–96 (supportive, District of Columbia Circuit). It will have a positive

impact, insofar as it will allow litigants to point to the actual case that contains the language on which they want to rely. As it stands now, we cite to

the lower court or agency decision and add the “enforced” citation (unpublished) in hopes that the court or clerks will read the unpublished appellate

citation. This is a ridiculous way to get these citations to the court’s attention, especially when the lower court or agency decision, which was published, does not really contain language directly on point, but the unpublished appellate decision does. Appellate courts respect other appellate

courts, even if the precedent is not binding, but without the ability to cite

directly to an unpublished appellate decision, we are left with having to

cite to a district court or agency opinion which, even if published, is not as

persuasive as a decision by an appellate panel. (I have not addressed unpublished district court decisions because they just do not come up much

in my practice (labor), because district courts do not deal with labor issues,

and because these questions seem geared to unpublished appellate decisions.) Also, speaking from my clerking experience at the district court

level, there were many cases in my circuit in which the appellate court had

essentially announced or decided a new rule, but had not published it, for

some unknown reason. Given that there is no requirement that courts explain why they do not publish a decision, and given that there’s no standard for what to publish or not, the rule against citing to unpublished decisions seems unfairly arbitrary.

A–97 (opposed, District of Columbia Circuit). I believe that the proposed rule would make the preparation of appellate briefs somewhat more

burdensome. It would also impose an ethical duty on counsel to check unpublished opinions, for which counsel would have to absorb the additional

time or costs if not passed on directly to the client. This invites citation to

any unpublished opinion, whether specifically provided for by rule or not.

In my opinion, counsel should simply incorporate the argument of such

unpublished authority. If the logic is persuasive, it matters little whether it

originated with another court or the parties’ lawyers. The burden of the

proposed rule outweighs the benefits.

A–98 (neutral, Federal Circuit). On occasion, I have found that the

most relevant case is unpublished. In those circumstances, we tend to follow the reasoning, without citation to the unpublished opinion. In those

instances, I would still present my appellate argument in a similar fashion

but would also cite the unpublished opinion to show that the reasoning

had previously been considered and accepted by the court. I would still

search for the most relevant published opinion because binding precedent

is more persuasive.

A–99 (supportive, Eleventh Circuit). The proposed rule change seems

directed to circuits that publish their unpublished decisions on Westlaw
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and Lexis but then do not allow the cases to be cited. My circuit, the Eleventh Circuit, does not make its unpublished decisions available on Westlaw or Lexis, but allows attorneys in the circuit to cite unpublished decisions. So, in some circuits, you can read the cases but not cite them. Here,

you can cite them but not read them.

[Footnote added by attorney:] It is worthwhile to note the unfairness

of this. Attorneys who practice in Atlanta, who can pick up hard copies of

unpublished cases in the clerk’s office, and government attorneys, who are

always counsel of record in federal criminal cases and get copies of every

unpublished criminal case, have access to and can cite unpublished circuit

cases the rest of us do not know exist.

So the proposed rule change would have little impact in the Eleventh

Circuit until the Eleventh Circuit makes its unpublished decisions readily

available online. In general, the proposed rule may increase citation of unpublished decisions, but not significantly. The block-lettered warning that

appears atop unpublished cases on Lexis and Westlaw has a chilling effect

that may wane if the rules limiting citation of those cases are eliminated,

but attorneys will still prefer to cite cases with precedential value. I can cite

unpublished cases from other circuits freely now, but I do it only one or

two appeals each year.

That being said, I feel strongly that when I find good arguments that

may help my clients I should make them, regardless of whether I find the

arguments in published or unpublished cases. Rules that prohibit citation

to unpublished cases must create a bit of an ethical dilemma for attorneys

in circuits that have them. When those attorneys find good arguments in

unpublished cases, I wonder: do they (1) ignore them, (2) make the arguments without acknowledging their sources (and thereby commit plagiarism), or (3) cite the cases in violation of the circuit rules?

b. Not Precedent

Twenty-six attorneys observed that it is well understood that unpublished

opinions are not binding precedents in the way that published opinions

are. Five of these attorneys were supportive of the proposed rule, 10 were

neutral, and 11 were opposed to it. In addition to the attorney comments

compiled here, three other attorneys reminded us that unpublished opinions are not precedent: attorney A–158 (neutral) (comment compiled under

3.a. Accessible); attorney A–211 (opposed) (comment compiled under 4.d.

Shorter Opinions); and attorney A–216 (opposed) (comment compiled under

4.f. Delay).

A–100 (supportive, Third Circuit). I would appreciate a rule permitting such citation as long as it was clear that those cases could not be offered for any precedential value. Often unpublished cases lack strong

analysis (or any analysis) of a given issue. As a result, they are not “worth”
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much. Every once in a while, however, they provide helpful analysis which

could help judges form their opinions. Such a rule would not necessarily

create more work for me, but I could see judges having to work harder if

they feel compelled to actually read unpublished cases cited in the parties’

briefs.

A–101 (supportive, Tenth Circuit). If the rule does not change the fact

that unpublished decisions are not binding precedent, I think the new rule

would have no impact. I prepare a lot of appeals, and unpublished decisions can be very useful if they are very close to the facts of your case or the

number of similar unpublished decisions is significant for some reason. I

regularly cite to them, and their use does not affect my work, because all

my research now is done electronically.

A–102 (supportive, Ninth Circuit). I believe that this would make the

writing of briefs easier. I am not sure that the rule would have a great impact on the decisions of the courts, as they would not view unpublished

decisions as precedent. On the other hand, to the extent that judges are able

to get more information, including a clearer picture of what has happened

at the administrative level, reference to unpublished decisions could make

a difference.

A–103 (supportive, Third Circuit). I personally favor the proposed

rule, but do not believe it would have a great impact. A good lawyer cites

precedential opinions where possible. If there is no published authority on

a particularly obscure point, however, why should the parties and the

court not have the benefit of looking at how a different court or panel approached the issue, even if it is not precedential?

A–104 (supportive, Tenth Circuit). As long as these opinions continue

to lack value as precedent, I do not think such a rule would be unduly burdensome. It is helpful to practitioners to cite unpublished opinions for persuasive authority, and I would think it would be helpful to members of the

court to know the results reached by their colleagues.

A–105 (neutral, Eleventh Circuit). I think it might be useful to cite to

the facts of unpublished opinions and how the court issuing the unpublished opinions applied the existing case law to the facts of the particular

case. This would be for illustration purposes only. I cannot really envision

the citation to unpublished opinions being of much help in light of their

non-binding nature. Other than to illustrate how an appellate court analyzed a case, I see little use. However, I do not have a significant appellate

practice at the present time and do not have a great deal of appellate experience compared to many practitioners.

A–106 (neutral, Eleventh Circuit). I do not believe it would have much

of an effect on my work, nor on my colleagues’, since we are currently

permitted to cite unpublished decisions. The hesitancy in citing such deci-
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sions stems from their lack of binding effect, a circumstance that will not be

affected by the proposed rule change.

A–107 (neutral, Seventh Circuit). If such an opinion were favorable it

might be useful by analogy. But if not binding as precedent, the fact that

unpublished opinions could go either way would make the process very

burdensome, especially if they are not Shepardized.

A–108 (neutral, Ninth Circuit). Allowing citation to all opinions would

make formulating arguments easier in many cases, but would not necessarily make the arguments any more persuasive if unpublished opinions remain without binding precedent authority.

A–109 (neutral, Fifth Circuit). I would resort to unpublished opinions

only in the event of a total lack of supporting precedent in published opinions and then only to provide the court guidance in the instant case.

A–110 (neutral, Seventh Circuit). The courts will take notice of such

unpublished opinions, but if such opinions are not binding precedent,

there will not be much influence on legal opinions and courts’ decisions.

A–111 (neutral, District of Columbia Circuit). Very little, because such

opinions still hold no precedential weight. It will only encourage showboating by legal nerds who want the court to know that they know some

law.

A–112 (neutral, Federal Circuit). Not a significant impact because I believe that the federal appellate courts will continue to follow the stare decisis

with respect to published decisions only.

A–113 (neutral, Eleventh Circuit). Unless the unpublished opinions

have some precedential value the rule change would probably have minimal impact.

A–114 (opposed, Fifth Circuit). As a civil and criminal appellate attorney with experience in both the private and government sectors, I can honestly say there is already enough abuse with citation of cases. The use of

unpublished cases would make this situation worse. The Fifth Circuit’s

rules already allow for the citation of unpublished opinions in certain appropriately limited circumstances. As a former intermediate appellate staff

attorney, I also believe that courts should have the right to shield certain

decisions from use as precedent. It is part and parcel of the percolation effect for legal issues and the occasional need for decisions based solely on

the facts of a particular case. In short, allowing citation to all opinions

would have a negative impact on the appellate process and would lead to

further abuses on briefing. I oppose such a rule.

A–115 (opposed, First Circuit). The decision of a court to publish or

not publish a particular adjudication of an issue or a case is usually tied to

their intent of it having prospective generalized application. For one reason

or another, a judge may dispose of an issue or a case in a manner that pro-
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motes judicial management, but without pretension to precedent; and that

distinction is usually reflected in the decision to publish or not. If an unpublished opinion has no precedential value, it should not be relied upon

by a party; if it does, it should be published. I do not fathom the logic of the

recommendation.

A–116 (opposed, District of Columbia Circuit). Citing to unpublished

opinions, which have no precedential value, would seem to complicate the

task of the brief writer. Why cite opinions that have no binding effect? The

case for which I was attorney of record was an OSHA case. The OSHRC

has promulgated rules providing that ALJ decisions can be cited but have

no precedential value. As a result, I devote substantial time agonizing over

whether or not to cite to such decisions, which can be disregarded by the

OSHRC. To me, the real issue here is the policy reasons underlying unpublished opinions.

A–117 (opposed, Sixth Circuit). The diligent practitioner would feel a

need to consider the universe of unpublished opinions, increasing the time

spent on an appeal. Even with the assistance of computers, that time could

prove considerable in some cases at least. Yet the unpublished opinions

would have no binding effect (as question 5 above indicates). Therefore,

the practitioner would wonder about the utility of the additional work

while also feeling obligated to engage in the work. Thus the impact could

prove more negative than positive and a source of frustration.

A–118 (opposed, Tenth Circuit). There is a reason unpublished opinions are not cited in the official reporters. It seems that allowing attorneys

to cite to unpublished opinions would simply inject more uncertainty into

the already uncertain business of interpreting case law. Moreover, practically speaking, judges will probably accord less deference to unpublished

opinions, thereby making their use of little real value.

A–119 (opposed, Ninth Circuit). As long as the unpublished opinions

remained non-binding, it would seem that the effort in using the unpublished opinions would be somewhat wasted. Either they should mean

something (and I do not think they should), and that would make it worth

citing and replying to the unpublished opinions, or they should not mean

anything and therefore should not be cited to.

A–120 (opposed, Fifth Circuit). Such references would unnecessarily

clutter the appellate briefs and divert the parties’ attention from the published opinions that control the issue under review.

A–121 (opposed, Third Circuit). It would be much more burdensome

to have to respond to and distinguish cases of no precedential value.

A–122 (opposed, First Circuit). Generally, if the unpublished decisions

are not going to have precedential value, why bother?
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c. Not Useful

Sixteen attorneys observed that unpublished opinions generally are not

useful. Most of these attorneys (nine) were neutral concerning the proposed rule, six opposed it, and one attorney supported it. In addition to the

attorney comments compiled here, two other attorneys mentioned that unpublished opinions are seldom useful: attorney A–138 (opposed) (comment

compiled under 2.d. Poor Quality); and attorney A–213 (opposed) (comment

compiled under 4.e. Longer Opinions).

A–123 (supportive, First Circuit). I think the impact would be modest.

The case law in my practice area (energy law) is fairly well established, and

there are very few instances in which I would find unpublished case law to

be applicable. That said, the proposed rule would be helpful in those rare

instances in which I could cite to an unpublished opinion.

A–124 (neutral, Eighth Circuit). The impact would be to essentially

replicate briefing methods currently utilized in the local district court,

where unpublished opinions appear to be routinely cited regardless of the

court issuing the opinion. Any additional burden would fall most heavily

on the judges and law clerks of the court of appeals who would be required

to review the significantly greater number of cases made available for citations. Given the rather perfunctory legal analysis of most unpublished

opinions, many of which are cited only because the opposing party is also

utilizing unpublished opinions, it seems doubtful that much of significant

value would be added to appellate briefing by a new rule on this issue.

A–125 (neutral, Third Circuit). None. I have rarely found unpublished

court of appeals cases helpful. My experience is that unpublished opinions

are unpublished for a reason; i.e., either there is nothing remarkable about

the case or the opinion is not worthy as precedent. Allowing citation of unpublished cases of lower courts, however, could be helpful. In many states,

court of chancery opinions are generally unpublished, but oftentimes are

the only opinions available discussing corporate law.

A–126 (neutral, First Circuit). It strikes me as silly that unpublished

opinions are readily available on Westlaw but cannot be cited. Nevertheless, only very seldom is an unpublished opinion critical. In most instances

the published opinion is more fully explained than an unpublished one

and thus more helpful.

A–127 (neutral, Seventh Circuit). I do not believe that permitting the

citation of unpublished opinions would have an appreciable impact, because the occasions where I have wanted to cite such a decision have been

so few.

A–128 (neutral, Fourth Circuit). No significant impact. There are

enough published cases already. Cases are unpublished for a reason, and I

expect few unpublished cases will find their way into appellate briefs.
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A–129 (neutral, First Circuit). None. Usually the unpublished opinions

are cases where the facts or factual scenario have been already resolved

under controlling and binding published opinions.

A–130 (neutral, Eleventh Circuit). Very little. In my circuit, I attempt

to cite the binding precedent on each issue, and I cannot ever remember

this being an unpublished opinion.

A–131 (neutral, Second Circuit). The impact would be very minimal as

unpublished opinions deal with basic hornbook issues.

A–132 (neutral, Eighth Circuit). None. There are plenty of published

cases on which to rely.

A–133 (opposed, Federal Circuit). A few appellate lawyers will advance extremely broad interpretations of the law, based upon unpublished

decisions. These arguments will be tedious to rebut. The problem lies in the

circuits’ rationale for unpublished decisions: that they do not break new

legal ground. It is but a short step from that premise to the argument that

unpublished decisions are next-best-to-precedential, because, by definition,

they (merely) reflect a panel’s reading of existing law. This would inevitably encourage lawyers to make use of the ambiguity and place great emphasis upon unpublished decisions that are helpful to the clients, while acknowledging in lip service that the unpublished decisions themselves do

not control.

A–134 (opposed, Second Circuit). I would spend additional and significant time searching through unpublished decisions. I guess they would

remain as terse as they are now. Thus, it would be difficult to discern

whether the cases are factually similar, as many unpublished decisions are

fairly light on the facts. The judges might spend more time on the unpublished decisions (i.e., give more information and explanations). I take it on

faith that the unpublished decisions do not add anything new to the law.

However, I have seen a few that really were significant and deserved

greater exposition.

A–135 (opposed, Tenth Circuit). Except in rare instances, the need for

citation to unpublished opinions is non-existent. The Commissioner of Social Security, however, uses them frequently. The Tenth Circuit, disturbingly, has begun citing as authority the unpublished opinions of other circuits. There is usually a reason that opinions are not published. Permitting

citation to unpublished opinions from other circuits would be a mistake.

A–136 (opposed, Tenth Circuit). In the Tenth Circuit and in the field of

immigration law there appear to be few unpublished cases that do anything but reiterate published decisions. I do not feel that it would make

much difference to my practice.
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d. Poor Quality

Fifteen attorneys observed that unpublished opinions are not drafted with

the same degree of care as published opinions. Most of these attorneys (12)

opposed the proposed rule; three were neutral. In addition to the attorney

comments compiled here, two other attorneys expressed concern about the

quality of unpublished opinions: attorney A–208 (neutral) (comment compiled under 4.c. Higher Quality Opinions) and attorney A–239 (neutral)

(comment compiled under 5.c. Should Be Precedent).

A–137 (neutral, District of Columbia Circuit). None, though I’ve found

generally that unpublished opinions are less detailed and less thorough

than published opinions, and therefore, less useful for appellate work.

A–138 (opposed, Eleventh Circuit). In my opinion, having a federal

rule allowing the citation of unpublished opinions would have a negative

impact on appellate practice. My basic understanding is that if an appellate

decision establishes a new rule of law or applies an established rule in a

different way or to significantly different facts, the court will, and must,

publish the opinion. Unpublished opinions are thus only issued when

prior precedent applies directly to the issues raised. They give the parties a

reason for the ruling, but do not establish new precedent. It is reasonable to

conclude that courts will generally pay closer attention to the language and

reasoning of published decisions because they establish precedent.

My fear is that having a federal rule allowing the citation of unpublished opinions will improperly give greater weight to unpublished decisions that may not have gone through the rigors imposed on precedentproducing decisions. There is irony in the case for which I was selected to

participate in this survey. That case directly illustrates the dangers of reliance on unpublished decisions. The appeal raised the issue of whether attempted illegal reentry was a specific intent offense. The Eleventh Circuit

had ruled in a published opinion that it was not. But that decision did not

offer any legal reasoning and merely adopted the reasoning of an unpublished decision from another circuit. However, a close look at that unpublished decision suggests that the other circuit was dealing with a case of

illegal reentry and not attempted illegal reentry. The problem was that the

unpublished decision was not clear. In fact, the other circuit later issued a

published opinion contrary to that of the Eleventh Circuit. Thus, reliance

on an unpublished decision resulted, in my opinion, in bad precedent that

has yet to be corrected. If anything, I would hope that reliance on unpublished opinions would be lessened and not encouraged.

A–139 (opposed, District of Columbia Circuit). I think it will require

counsel to invest unnecessary effort in reviewing, digesting, and distinguishing earlier decisions that were the result of poor advocacy.

In my view, there are two legitimate reasons for making a ruling (and

its reasons) non-precedential: First, that the case calls for the application of
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well-settled rule to facts that are either peculiar (in this category should fall

many sufficiency-of-evidence issues), have already arisen in a published

case, or are simply too clear to cause any reasonable dispute. Second, that

the case has been so poorly litigated that the court cannot be sure that the

resulting decision will be of any value to anyone other than the parties.

Citations to each class of unpublished decision give rise to a different

kind of burden. Fact-bound cases make for either difficult or merely duplicative reading. In the former case, opposing counsel must engage in the

tedious task of distinguishing the facts; in the latter case, of organizing the

various repeated factual patterns into categories, and then distinguishing

them as a group.

On the other hand, cases that are poorly litigated often lead to troublesome decisions, for the simple reason that the court is not well advised

as to all the possible arguments. The court’s resolution was no doubt correct as to those parties because the arguments not made are necessarily

waived; the court cannot decide what was not presented to it. However,

the decision on the facts presented (excluding the defaults of advocacy)

may not be correct as a general legal proposition. If such decisions may be

cited—even for merely persuasive value—opposing counsel will be required to show why the decision is not persuasive; that is, that one or more

crucial arguments were omitted in the earlier case. Assuming the prior unpublished decision is not unduly lengthy or complicated, the burden

would not be tremendous, however, because those arguments would have

to be made in the case at hand in any event.

A–140 (opposed, Eleventh Circuit). I disfavor allowing the citation of

unpublished decisions. Generally, unpublished decisions are short memorandum-type opinions with hardly any factual discussion or legal analysis.

Therefore, citing to these cases should contribute little, if anything, in the

adjudication of a notice of appeal. To the contrary, it might make writing a

brief more burdensome for appellees. Appellants with questionable claims

could be encouraged to rely excessively on seemingly similar unpublished

decisions in support of their arguments. If this rule is approved, it should

at least be limited to those cases where there is no precedential case law on

the matter before the court, and where no other circuit court has published

an opinion addressing the issue.

A–141 (opposed, Sixth Circuit). I personally like to think that the circuit courts put more thought into their published opinions than their unpublished opinions. As such, I think citations to unpublished opinions may

contribute to bad precedent—as circuit courts might be reluctant to overrule cited unpublished opinions, which though bad are on point. I would

hate for the U.S. Attorney’s Office to be able to cite the opinion in my case.

I believe it was thoughtless and rushed and overly deferential to the dis-
Citing Unpublished Opinions in Federal Appeals

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trict court judge who, I believe that both parties would concede, was not

even on point.

A–142 (opposed, District of Columbia Circuit). I think it is a terrible

idea. Unpublished opinions are not as developed, either factually or legally, as are published decisions, and they will become precedents although they have not received the same care as published opinions. They

are often drafted by staff attorneys, not even by the judges’ own clerks. The

only good thing about a national rule is it would be better than all the individual rules now outstanding, but I still think the whole concept is a bad

idea.

A–143 (opposed, District of Columbia Circuit). There is already ample

published authority. The new rule would result in having to distinguish or

otherwise argue against all kinds of unpublished orders, opinions, etc.,

which would be more burdensome on attorneys and the courts. It might

hurt the quality of the briefing and writing. Judges, clerks, and attorneys

may get distracted by opinions and orders that were never intended for

publication or citation, and that could only harm the entire process.

A–144 (opposed, Second Circuit). I believe such a rule would be illadvised, because of the number and nature of unpublished opinions available online. Research would take considerably longer and raise client costs,

without producing a superior product. Many unpublished opinions are not

very well written, which could lead to mischief—namely, someone citing

them in an effort to distort the law. I oppose the new rules.

A–145 (opposed, Tenth Circuit). I believe that often unpublished opinions are not as carefully crafted or thought out as published opinions, so

the use of unpublished opinions should be limited. Further, the sheer

number of opinions issued by the courts of appeals every year would make

my work more burdensome if the rules were made more lenient.

A–146 (opposed, Eleventh Circuit). I believe the net effect of such a

new rule will be negative. Published opinions are more carefully written

than unpublished. Some of us who regularly do appellate work find a cacophony of voices in the law now. Unpublished opinions will only add to

the discordant effect.

A–147 (opposed, Fourth Circuit). Increase citations in briefs and require responses to unpublished opinions cited in opposition’s brief. Main

concern is that unpublished opinions are often unpublished due to a quirk

in the record not apparent in the opinion and could result in dubious

precedent.

A–148 (opposed, District of Columbia Circuit). It worries me. I am

concerned that, in the past, unpublished opinions may have been issued

with the understanding that they would not be precedent. To allow the citation of these opinions may confer more weight on them than they were

intended to carry.
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A–149 (opposed, Ninth Circuit). I would expect some courts to make

unpublished opinions less available to the public. Responding to arguments based on unpublished opinions will be difficult because it is often

difficult to discern the factual basis for an unpublished decision.

e. Good Quality

One attorney remarked that unpublished opinions are actually of good

quality. This attorney supported the proposed rule.

A–150 (supportive, Sixth Circuit). Since these cases are now readily

available to practitioners in this age of computer research, I think it is reasonable to allow their citation. The court has to apply the same careful legal

reasoning in reaching its decision, whether published or unpublished, so I

see no reason not to allow citation of unpublished as well as published decisions.

3. Access to Unpublished Opinions

A strong historical reason for restricting citation to unpublished opinions

was the fact that many attorneys did not have easy access to them. But now

that so many unpublished opinions are available electronically from attorneys’ desktops, this reason appears to have less force. Twelve attorneys

mentioned how accessible unpublished opinions are now, but 15 attorneys

said that unpublished opinions are still often less accessible than published

opinions.

a. Accessible

Twelve attorneys observed that in this electronic age, unpublished opinions are now quite accessible, much more accessible than they were when

proscriptions on citing unpublished opinions were put in place. Most of

these attorneys (nine) were supportive of the proposed rule; three were

neutral. In addition to the attorney comments compiled here, three other

attorneys mentioned that unpublished opinions are now very accessible:

attorneys A–89 (supportive) and A–92 (supportive) (comments compiled

under 1.d. Already Reviewed); and attorney A–132 (supportive) (comment

compiled under 2.e. Good Quality).

A–151 (supportive, Third Circuit). Given the advancements in electronic case research and the wide availability of many unpublished dispositions on government and commercial electronic case research services, I

believe that relaxation of the current rules on the citation of unpublished

opinions would, in general, prove beneficial. In addition, I believe that

promulgating a uniform rule concerning the use of unpublished opinions

in the federal courts of appeals would have a positive spillover effect on
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lower courts. I, from time to time, have encountered disparate views even

among judges within the same court concerning the utility of unpublished

opinions. Presumably, a uniform rule in the federal court of appeals would

encourage lower courts to follow suit.

A–152 (supportive, First Circuit). Since these decisions are readily

available, although technically “unpublished,” they should be available for

citation without changing their status as precedent. In practice, I have

found that these cases are often cited notwithstanding the current rule, especially in areas where there is little other case law. A change in the rule

would obviate the need to argue both that the citation to the case was improper, and then address the case on its merits. In fact, that occurred in the

subject appeal when opposing counsel cited an unpublished California

case in violation of California court rules. It does not make sense to pretend

these cases do not exist, when they are readily accessible.

A–153 (supportive, Sixth Circuit). I fully support the more liberal approach to citing unpublished opinions. With computer-assisted research,

there is no appreciable difference in research time. Including unpublished

opinions with briefs might be a little more burdensome.

A–154 (supportive, Tenth Circuit). We would have more guidance on

issues that have often only been fully addressed in unpublished opinions.

With computerized research, it would be easy for the practitioner to locate

the same.

A–155 (supportive, Sixth Circuit). A positive impact. No reason any

more to limit citation to only published opinions. “Unpublished” opinions

are available in computer research libraries.

A–156 (supportive, Third Circuit). It would be beneficial and is long

overdue. Today, most lawyers are aware of the unpublished decisions and

it makes sense to allow their use.

A–157 (neutral, Sixth Circuit). I think the impact would be minimal.

Given the availability of unpublished opinions on electronic databases,

most researchers, including the court personnel, know of the holdings in

unpublished opinions, so the reasoning and ultimate decisions in unpublished cases are often reflected in final decisions of courts. Citation to unpublished opinions simply would reflect the reality of today’s research capabilities. Preference should still be for published opinions if available.

A–158 (neutral, District of Columbia Circuit). I expect that the impact

would be minor: (1) unpublished opinions are available on Westlaw, so

accessibility of unpublished opinions should not be a significant problem;

and (2) an appellate court would probably continue to give more weight to

a published opinion, even if the rules permitted citation to unpublished

opinions (although an appellate court might give significant weight to an

unpublished opinion if it involved one of the very litigants then before the

court).
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A–159 (neutral, Eighth Circuit). More extensive research required

equals minimal impact, given computer research methods.

An informal survey of six other attorneys in our office revealed about

an even split on the desirability of having unpublished opinions to be citable or precedent.

b. Less Accessible

Fifteen attorneys said that unpublished opinions are not always as accessible as published opinions, at least not to everyone. Most of these attorneys

(12) opposed the proposed rule; two were supportive; one was neutral. In

addition to the attorney comments compiled here, three other attorneys

remarked that unpublished opinions are less accessible than published

opinions: attorney A–99 (supportive) (comment compiled under 2.a. Strategy); attorney A–210 (opposed) (comment compiled under 4.d. Shorter

Opinions); and attorney A–219 (supportive) (comment compiled under 5.a.

Accountability).

A–160 (neutral, Third Circuit). Realistically, I do not know that it

would have much of an impact; however, I believe such a rule may have

the opposite effect to the one presumably intended. I presume the intended

effect would be to open the court’s consideration to those diverse opinions

it would, under the present status of procedure, otherwise dismiss. While

this intent is laudable, I believe it ignores the problem of open access to

opinions. Not to attorneys, mind you, as they have resources available for

ready access to unpublished opinions. Rather, the non-attorney, to whom

these courts are open and for whom these courts truly operate, would be

prejudiced as he or she does not have (or may not have) such resources

available. Now, a non-attorney may visit his or her local courthouse and

retrieve all published opinions. Would he or she be able to retrieve all unpublished opinions there as well? If not, is that person truly better off being

able to cite cases he or she cannot find?

A–161 (opposed, Eleventh Circuit). I think that such a rule would have

minimal impact on my practice, but might not be a good idea generally. In

my circuit, unpublished opinions are not available on Westlaw and not

published for a reason. Although they can be useful in limited situations, in

busy circuits such as ours, unpublished opinions dilute the body of law as

a whole and should not be more widely used. I am not sure of the practices

in other circuits but do know that many circuits do not publish much and

therefore unpublished opinions are cited more. A more permissive rule

might disincentive publication.

A–162 (opposed, Tenth Circuit). I have not seen this proposed rule.

Nevertheless, unless the unpublished opinions of every circuit are readily

available and easily accessible for all lawyers via available legal research

methods, it may make it difficult for some attorneys to compete. If the rule
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still requires that copies of unpublished opinions must be attached to the

briefs, it will make the briefs and appendix more lengthy, requiring more

paper, copying time, and scanning time for electronic filing.

A–163 (opposed, Fourth Circuit). One practical problem I foresee is

that the major providers—Lexis and Westlaw—do not always have the

same catalogue of unpublished decisions. That has come up in trial court

briefing—research cited on Westlaw by the other party was not retrievable

on Lexis. That is what I see as the main pitfall of such a rule. A second

problem is just that extra time needed to research other circuit’s unpublished decisions. That is not hugely burdensome, but would be an effect.

A–164 (opposed, Sixth Circuit). It would reward practitioners with access to unpublished materials and penalize those without.

It is fundamentally unfair for one side to have access to law that the

other side does not have.

This attempt to “liberalize” rules is really just a way to undermine the

rule of precedent.

It smacks of the unprincipled disregard for law that permeates the

Bush administration!

No! No! A thousand times no! And I mean it!

A–165 (opposed, District of Columbia Circuit). In my field—Freedom

of Information Act litigation—and with the limited resources of an attorney who does not have access to Westlaw or Nexis, I would expect this to

benefit the government, which has the capacity to comb all courts for unpublished decisions favorable to it, something I cannot do.

A–166 (opposed, Eighth Circuit). It would make brief writing and legal research more difficult for sole practitioners and lawyers from another

circuit appearing in those circuits, like me. I appeared in the Eighth Circuit,

but my “home” circuit is the Eleventh Circuit. Having to locate unpublished opinions would be difficult.

A–167 (opposed, First Circuit). Attorneys without ready access to

Lexis or Westlaw would be burdened by this rule. Additionally, considering that even attorneys who do have access normally pass the cost of computerized research on to their clients, the proposed rule will result in increased costs.

A–168 (opposed, Second Circuit). Am simply concerned about access

to those unpublished decisions that are (1) not my own and (2) not available through the various reporting services we have access to (limited

funds for access to comprehensive reporters).

A–169 (opposed, Third Circuit). It would be unfair to litigants whose

attorneys do not have the resources to discover unpublished opinions. It

unbalances what I believe is a level playing field.
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A–170 (opposed, Eighth Circuit). Without having Westlaw or Lexis, I

might be at a disadvantage, because I might miss a case that my opponent

has access to.

A–171 (opposed, Tenth Circuit). It would make it more difficult for

those who have no electronic research subscription.

4. Impact on the Court

Many attorneys commented on what impact on the court and the law the

ability to cite unpublished opinions might have. Twenty-six attorneys predicted an increase in legal consistency, but three attorneys predicted a decrease in consistency. Seventeen attorneys predicted that unpublished

opinions would improve in quality if they could be cited. Three attorneys,

on the other hand, predicted that unpublished opinions would just get

shorter, and two attorneys predicted that they would get longer. Five attorneys predicted that cases resulting in unpublished opinions would take

longer to resolve.

a. More Consistency

Twenty-six attorneys predicted that their ability to cite unpublished opinions would result in more legal consistency. Most of these attorneys (23)

supported the proposed rule; three were neutral. In addition to the attorney comments compiled here, five other attorneys mentioned that the ability to cite unpublished opinions could result in more legal consistency: attorneys A–197 (supportive), A–199 (supportive), A–202 (supportive), and

A–205 (supportive) (comments compiled under 4.c. Higher Quality Opinions); and attorney A–215 (neutral) (comment compiled under 4.f. Delay).

A–172 (supportive, Eleventh Circuit). I would expect a positive impact

from such a rule in terms of promoting uniformity among and between

panel decisions issued by the various courts of appeals, at least within the

same circuit. In fact, I recently encountered a case decision in my circuit

where it would have been extremely beneficial for a subsequent panel to

have been exposed to and provided with a prior panel decision, both in

terms of consideration of the prior panel’s reasoning and ultimate decision

by the new panel and, from a practitioner’s standpoint, understanding and

reconciling the subsequent panel’s published decision with the predecessor

panel’s unpublished decision. In that case, the published decision clearly

conflicts with the earlier rendered unpublished decision, but there is no

evidence that the panel rendering that opinion had any opportunity to consider the fact that an earlier panel of the same court had reached a very different (and dispositive) conclusion on the same issue it was considering.

Such a result is neither desirable from a consistency standpoint, nor does it

instill confidence in the value of the decision. In my opinion, it would have
Citing Unpublished Opinions in Federal Appeals

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been far more preferable for the subsequent panel to have had the opportunity to read and consider the prior unpublished panel decision before

rendering its decision and to, thereafter, either adopt that earlier panel’s

reasoning, or to discuss why that prior decision was inapposite to, distinguishable from, or simply wrongly decided in terms of how it related to

the new case under consideration by the court. It appears that the proposed

rule change would permit such, and I would consider that to be far preferable to the “blind” manner in which the decision arose in the example I

have cited above.

A–173 (supportive, Fourth Circuit). It would enable federal appellate

attorneys to offer courts more support and authority for the positions they

take. It would foster greater consistency of decisions in each circuit. It

would enable each circuit to see what issues may warrant more published

decisions if the parties routinely are forced to cite only to unpublished decisions because of a dearth of published decisions. It would enable attorneys to demonstrate that the positions they take are based on the court’s

own rulings and not simply fashioned out of whole cloth.

A–174 (supportive, Federal Circuit). In my experience, I have had to

relitigate issues previously decided in unpublished opinions. Permitting

citation to such opinions might reduce the need to relitigate issues by discouraging the filing of appeals or by enabling settlements. Otherwise, I do

not see a rule that simply allows citation of unpublished, non-precedential

opinions having much impact, aside from saving me the trouble of figuring

out what rule applies in the circuit, i.e., the general benefit of uniformity

for those of us who practice in all 13 circuits.

A–175 (supportive, Eleventh Circuit). The rule change would be desirable inasmuch as abundant non-precedential material is presently cited

without restriction. If the new rule allows citation by reference to a national

electronic database such as Lexis or Westlaw (without attaching a copy), it

will make practice easier. Attorneys should be free to argue to a court what

it or other courts have done in other cases. Otherwise courts are able to

conceal and disregard questionable and inconsistent dispositions.

A–176 (supportive, Third Circuit). I expect a rule permitting citation to

the courts of appeals’ unpublished opinions would be beneficial to the parties and the court insofar as such a rule would provide for the broadest

consideration of issues relevant to any given appeal and also would help

ensure consistency and fairness, two central goals of any system of justice.

A–177 (supportive, District of Columbia Circuit). It would assist counsel in the rare case in which the only cases on point (or nearly the only

cases on point) are not published. It also would result in a fairer judicial

process that—by eliminating the second-class status of unpublished decisions—would likely yield more consistent judicial decision making.
Citing Unpublished Opinions in Federal Appeals

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A–178 (supportive, Federal Circuit). I think it is a good idea, which

will, among other things, promote uniformity in results. Unpublished decisions reached their results by application of case law. That result is worth

studying in future cases and thus worth citing, even if it is only of the “it is

what it is” variety.

A–179 (supportive, Eighth Circuit). I think it would be useful, if for no

other reason, as a guide or reminder to the court of what has been done in

prior cases. The court will determine to what degree, if any, an unpublished opinion could provide guidance in a particular case.

A–180 (supportive, District of Columbia Circuit). It would enable attorneys, in some cases, to learn about, and to cite, cases, making the court’s

precedents more consistent and coherent, and might focus the court’s use

of precedent in a constructive way. I do not see a downside.

A–181 (supportive, Fifth Circuit). It would allow for quicker review as

law is being developed and interpreted. It might prevent multiple reargument of issues that have been considered and make it somewhat easier

and quicker to explain arguments.

A–182 (supportive, Eleventh Circuit). I screen out cases that are unpublished that might be useful before looking at them. Citations to unpublished opinions would lead to greater uniformity within the circuit panels.

A–183 (supportive, First Circuit). It might require more internal consistency intra-circuit. Therefore, it may accentuate diverse and different

positions within the circuits.

A–184 (supportive, Third Circuit). The proposed rule would promote

consistency within the circuit and especially within the trial courts (district

courts) within the circuit.

A–185 (supportive, First Circuit). Helpful to be able to cite unpublished opinions, particularly in those circuits where the panels’ views vary

(e.g., the Ninth Circuit).

A–186 (supportive, Eighth Circuit). It would make brief preparation

moderately more expensive, but would promote consistency and better

development of the law.

A–187 (supportive, Fifth Circuit). It would permit citations to opinions

that may result in consistent rulings on particular issues throughout all circuits.

A–188 (supportive, Eighth Circuit). It would allow the court to consider all previous decisions and thereby render a more informed opinion.

A–189 (supportive, Sixth Circuit). I think it would be good for jurisprudence because it would encourage uniformity in the law.

A–190 (supportive, Eighth Circuit). More uniform rulings and less diversity among circuits.
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A–191 (neutral, District of Columbia Circuit). (1) It could reveal the existence of unpublished opinions by different panels within the same circuit

that were inconsistent. That would be a good thing. (2) It would raise a

concern that a lawyer might be deemed to have committed malpractice if

he/she did not discover and cite an unpublished opinion on point and favorable to his or her position. This would not be a great concern if unpublished opinions were always available through Lexis and Westlaw

searches.

A–192 (neutral, Sixth Circuit). I expect such a rule would result in

longer briefs on appeal, and more time. Even if precedential weight did not

change, plaintiffs would seek to rely on unpublished opinions and defendants would feel compelled to distinguish them. Appellate law clerks and

judges may be more burdened. However, it could lead to greater consistency among rulings, especially within a circuit.

b. Less Consistency

On the other hand, three attorneys predicted that the ability to cite unpublished opinions would result in less consistency in the law. Two of these

attorneys opposed the proposed rule, and one supported it.

A–193 (supportive, Ninth Circuit). I think more conflicts would appear among “citable” opinions, but that a fuller presentation of relevant

authority would be allowed. I am for it.

A–194 (opposed, Ninth Circuit). I would think that it would lower the

quality and the certainty of the decisional law in the most important appellate courts, the federal courts of appeal, since these courts make most of the

decisional law on a day-to-day basis.

A–195 (opposed, Eighth Circuit). It would lead to a less coherent body

of case law. The court selects for publication its opinions that it wishes to

have precedential effect. There should be a mechanism that allows the

courts to decide cases without making law.

c. Higher Quality Opinions

Seventeen attorneys predicted that their ability to cite unpublished opinions could result in unpublished opinions becoming higher in quality.

Most of those attorneys (14) supported the proposed rule; three were neutral. In addition to the attorney comments compiled here, four other attorneys mentioned that the ability to cite unpublished opinions might result

in better unpublished opinions: attorney A–90 (supportive) (comment

compiled under 1.d. Already Reviewed); and attorneys A–232 (supportive),

A–235 (supportive), and A–236 (supportive) (comments compiled under

5.c. Should Be Precedent).
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A–196 (supportive, Fourth Circuit). The immediate effect is likely to

be an incremental increase in decisions cited in appellate briefs and slightly

more burdensome research and brief preparation. The long-term impact

could be heightened discipline by the judges who have relied too heavily

on unpublished opinions as a way of disposing of cases. Most appellate

lawyers with whom I have discussed this issue hold the view that a rule

allowing citation of unpublished opinions will indirectly but surely improve the quality of those opinions and reduce the uncertainty and confusion that the present practice has generated. Allowing citation to unpublished opinions may lead to increased scrutiny of these opinions by the

judges themselves, which may result in a slightly increased burden on

them and their law clerks.

A–197 (supportive, Seventh Circuit). In a nutshell, it would be a vast

improvement. (1) It will promote uniformity within circuits. (2) It will improve the quality of unpublished decisions. (3) It will help to reduce the

perception (especially by the parties, as opposed to their attorneys) that

their cases were not considered as important as others, because their decision was not published, while others were. (4) It will help define the law in

fact-specific areas (e.g., in my case, which dealt with several frequently recurring issues regarding informants and search warrants) by increasing the

database, making it more likely that the parties can find a (citable) decision

with similar facts.

A–198 (supportive, Federal Circuit). It would be beneficial, for at least

two reasons. First, it would discipline courts with respect to their unpublished opinions, by subjecting them to greater sunshine. Second, it would

permit courts and counsel greater resort to prior judicial analysis, if not for

their controlling weight, at least for their persuasiveness.

A–199 (supportive, Federal Circuit). Relaxing the current prohibition

would help promote consistency throughout all of the deliberations of the

courts of appeals. It also would make it clear that all decisions are reached

with equal care—there are no “second class” decisions made with less attention to the law and facts.

A–200 (supportive, Federal Circuit). It would make judges more conscientious in writing what they now render “unpublished.” All written

opinions should be prepared with the expectation that others will rely on

them, and such others should be permitted to do so.

A–201 (supportive, Seventh Circuit). It would not make the work

more or less burdensome but it would: (1) improve the quality of advocates’ briefs by increasing the quantity of precedential resources, and

(2) improve the quality of the unpublished opinions.

A–202 (supportive, Seventh Circuit). I would hope that decisions

would be more consistent and carefully written if unpublished opinions
Citing Unpublished Opinions in Federal Appeals

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could be cited. This rule may also lead to fewer unpublished opinions. I

think this would be a positive development.

A–203 (supportive, Tenth Circuit). Would help lawyers who would

like to cite analogous cases but are now prohibited from doing so. Would

make circuit courts more careful in drafting unpublished decisions.

A–204 (supportive, Eleventh Circuit). It would force appellate courts

to craft their unpublished opinions more carefully.

A–205 (supportive, Fourth Circuit). Improve consistency of holdings

and quality of opinions.

A–206 (neutral, Eleventh Circuit). As far as citing cases, not a lot of

impact. Where I think it would impact in the Eleventh Circuit is this: Because the court’s unpublished opinions are not available to the public, even

on PACER, the judges tend to be a little less careful with precedent than

they would be if we could see what they are doing in every case. I believe

that the reason they do this is that they think there is just not enough time

to make every case come out consistently with precedent. I realize the

judges are overworked, but attempting to address that problem by not

making all the court’s opinions available is not a very good answer.

For my money, a rule that requires the court to make all opinions

available to publishers and PACER subscribers would solve the problem.

The restrictions on citation of the courts that do make the opinions available are reasonable and understandable. They generally do not prevent the

citation of an unpublished opinion as persuasive authority.

A–207 (neutral, District of Columbia Circuit). I believe that there

would be two significant impacts. First, the courts of appeals will reduce

the number of unpublished opinions as they give greater care to all opinions given their possible citation in future cases. Second, appellate counsel

will bear an increased obligation in at least some cases to research unpublished opinions to find cases that may be helpful to their position or that

opposing counsel may cite in opposition. This will add to the burdens on

appellate counsel.

A–208 (neutral, Third Circuit). My impression is that unpublished

opinions are less scholarly and undergo less scrutiny internally by the

court than opinions that are going to be published. If unpublished opinions

can be cited, hopefully the quality of those opinions will improve, which

would increase the workload on the courts.

d. Shorter Opinions

Three attorneys predicted that if unpublished opinions could be cited,

courts would issue unpublished opinions with less content. Two of these

attorneys opposed the proposed rule; one was neutral.
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A–209 (neutral, Eighth Circuit). I expect judges will say less in unpublished opinions so as to reduce the opportunity to elicit a rationale for the

decision.

A–210 (opposed, Second Circuit). I expect that adoption of a new national rule permitting the citation of unpublished opinions would have a

negative impact on the administration of justice in the Second Circuit. If the

proposed rule is adopted and unpublished opinions can be cited as authority, the court would have two choices. The court could write the equivalent

of a published opinion in every case, or it could revert to its prior practice

of deciding cases either without opinion or in a few sentences. Writing full

opinions in every case would, I suspect, prove to be impossible, as Judges

Kozinski and Reinhardt confirmed in their excellent article on this topic in

the California Lawyer. This means that a return to the practice of deciding

cases without opinion would be the likely outcome. In my experience the

change to summary orders has been beneficial to the public perception of

the courts, since litigants receive a reasoned explanation of the decision,

not just an impenetrable order. It would certainly be an unintended consequence of the proposed rule to deprive litigants of the reasons for the decision in their case just because lawyers want more verbiage to cite in future

cases.

The proposed rule would also have an adverse effect on the ability of

many lawyers to properly represent their clients. Unlike other forms of

persuasive authority, such as law review articles, every unpublished opinion on the subject will have to be accounted for in the brief. Since these

opinions contain only an abbreviated statement of the facts, lawyers who

wish to distinguish the cases will have to obtain the briefs. This clearly favors institutional and wealthy litigants who can spend the time and money

necessary to retrieve briefs. The unconscious favoritism of large litigants

over single practitioners is also apparent in the advisory committee’s decision not to require that copies of unpublished decisions be served with the

brief. It is easy to forget that not all lawyers have broadband Internet access

or access to expensive databases such as Westlaw or Lexis. Poor clients and

lawyers in small practices will be placed at a further disadvantage if this

rule is adopted. This is even more true for pro se litigants and prisoners.

A–211 (opposed, Ninth Circuit). I believe that the proposed rule will

lead the circuits to render summary dispositions under Rule 36(a)(2) in

cases where they would otherwise perhaps write an unpublished opinion. I

practice primarily before the Federal Circuit and my experience has been

that the court already summarily affirms or dismisses under Rule 36(a)(2)

in many cases where at least a non-precedential opinion should have been

written. Assuming that the court would afford greater attention to the content of its unpublished opinions knowing that other courts of appeals may

be seeing them under the proposed rule, I believe it would utilize Rule
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36(a)(2) in certain cases in lieu of spending the additional time and resources necessary to “fine tune” an unpublished opinion for possible scrutiny by other circuit judges. Given that the Federal Circuit’s caseload is a

fraction of that of the regional circuits, I believe it is reasonable to assume

that the regional circuits would similarly increase their use of summary

dispositions.

The proposed rule’s effect on appellate practitioners would vary

based on each circuit’s local rules. In circuits that would not assign precedential weight to its own unpublished opinions, there would be little reason to expend a great deal of time and resources seeking on-point unpublished opinions from any circuit. The potential persuasive benefits of such

opinions would likely be outweighed by the added burden, which would

ultimately be shifted to the client.

In circuits treating such opinions as precedential, practitioners’ burden would be directly proportional to the number of unpublished opinions

the circuits would issue under the proposed rule. Practitioners would be

ethically obligated to research unpublished opinions to the same degree as

published opinions. Failure to locate a favorable, directly on-point unpublished opinion could create malpractice liability as well. If, however, the

circuits substituted summary dispositions under Rule 36(a)(2) for unpublished opinions to a great extent, there would not really be that much additional authority to research.

e. Longer Opinions

Two attorneys predicted that if they could cite unpublished opinions, perhaps such opinions would become longer and richer in content. One of

these attorneys opposed the proposed rule, and one was neutral.

A–212 (neutral, Third Circuit). For me, the rule would have very little

impact because I cite unpublished opinions freely now. I suspect, however,

that such a rule might adversely affect the productivity of the courts.

Knowing that cases can and will be cited, circuit judges might be reluctant

to produce two- or three-page NPOs. Instead, they might feel the need to

write and explain more, increasing the length of NPOs and adding to the

significant workload that judges already have.

A–213 (opposed, Third Circuit). It has been my experience, at least

with respect to the Third Circuit’s non-precedential opinions, that the opinions have little value beyond the particular facts of that given case. Generally, the opinions cite other published (and precedential) opinions; as a result, attorneys can cite to the other, published opinions when drafting

briefs and presenting their arguments to the court. In addition, nonpublished opinions often do not provide the facts in sufficient detail to

fully understand the case; the court generally only gives a background of

the case, with the understanding that the parties are well familiar with the
Citing Unpublished Opinions in Federal Appeals

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case. The lack of a complete factual background makes it difficult to cite a

non-published opinion in support of your argument, or to distinguish it

when cited by an adversary. If the rules are amended to allow citations to

unpublished opinions, the court of appeals may find itself in the position of

drafting and “publishing” more detailed and comprehensive nonpublished opinions—i.e., opinions akin to the court’s published opinions. If

not, I anticipate that the appellate work will become a little bit more burdensome because practitioners will cite non-published opinions that appear to be directly applicable but which may lack a sufficiently detailed

factual picture to allow for a meaningful distinction to be drawn. Ultimately, the result may be the ability to cite to non-published opinions that

appear to contradict published opinions.

f. Delay

Five attorneys predicted that the ability to cite unpublished opinions could

result in a delay in resolving cases in which they are issued. Three of these

attorneys opposed the proposed rule, one attorney supported it, and one

attorney was neutral. In addition to the attorney comments compiled here,

one other attorney mentioned delay: attorney A–69 (opposed) (comment

compiled under 1.b. Bias).

A–214 (supportive, Federal Circuit). Courts may be less inclined to issue certain opinions in writing or, alternatively, may take more time to issue opinions. But this proposed rule will be beneficial to practitioners looking for precedent on narrow issues.

A–215 (neutral, Federal Circuit). I would expect it to result in some

slowing in the process of getting opinions finalized. I would also expect it

to provide some marginal improvement in the overall consistency of appellate decisions, since the courts should be somewhat better informed about

how other appellate courts have dealt with similar situations.

A–216 (opposed, Ninth Circuit). I do not see the purpose of such a

rule if unpublished decisions are not binding. I would think this would

hinder judges from making certain necessary compromises to reach an equitable decision, knowing that the decision may be cited to and be used in

other cases.

A–217 (opposed, Federal Circuit). It would increase the workload of

the judges, who will take more time to issue “unpublished decisions.” This

effect will delay cases which merit “published” decisions.

5. Broad Policy Issues

Several attorneys addressed broad policy issues related to whether attorneys can cite unpublished opinions. Nine attorneys opined that the ability

to cite unpublished opinions would make courts more accountable. Four
Citing Unpublished Opinions in Federal Appeals

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attorneys observed that the proposed rule would further blur the distinction between published and unpublished opinions. And 12 attorneys suggested that perhaps the distinction should be eliminated.

a. Accountability

Nine attorneys said that allowing citation to unpublished opinions would

make the courts more accountable for their decisions. All of these attorneys

supported the proposed rule. In addition to the attorney comments compiled here, one other attorney mentioned accountability: attorney A–226

(supportive) (comment compiled under 5.b. Blurred Distinction).

A–218 (supportive, Sixth Circuit). I think it would be a significant improvement. Not only would it free litigants to cite well-reasoned unpublished opinions, but it would remind the courts that they need to take all

appeals seriously even if the case does not appear to merit a published

opinion, because they would know that all opinions would be a part of the

body of law that contributed to decisions of all cases and the development

of the law.

A–219 (supportive, Eleventh Circuit). Positive: The Eleventh Circuit

often issues unpublished opinions in cases that we (the U.S. Attorney’s Office) consider important—they tend to “bury” a holding that is important

to us. It is possible that such a rule would force the court to look more

closely at which opinions they published. Negative: If Westlaw does not

publish unpublished cases, how would we access them?

A–220 (supportive, Third Circuit). I am positive that the rule will be

beneficial. I am positive that it is counterproductive and contrary to the

rules of logic to have decisions that may not be cited, as if absolving the

courts of any responsibility for the decisions they make and allowing them

to avoid consequences of dealing with citations to those decisions.

A–221 (supportive, Seventh Circuit). Positive. Unpublished opinions

allow appellate courts to hide tough decisions that many times assist

criminal defendants. Unfortunately, the precedential value is then lost.

A–222 (supportive, Federal Circuit). Excellent idea! Precedent is

precedent. A rule saying “no fair pointing out what we have actually

done” has no place in a principled system of justice.

A–223 (supportive, District of Columbia Circuit). Public scrutiny of

federal officials, whether in the judicial, legislative, or executive branches,

always leads to more democracy.

A–224 (supportive, Seventh Circuit). It would make the appellate

courts more accountable and give them incentive to more carefully draft

opinions that follow the law.

A–225 (supportive, First Circuit). Potentially enhance the fairness of

the process.
Citing Unpublished Opinions in Federal Appeals

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b. Blurred Distinction

Four attorneys observed that permission to cite unpublished opinions

could result in a blurred distinction between published and unpublished

opinions. Two of these attorneys supported the proposed rule, and one attorney was neutral.

A–226 (supportive, Eighth Circuit). To the extent that my responses to

the rest of the survey are inconsistent with what is contained herein, this

statement supersedes statements made in the informal survey form. As

noted in the survey, I have done enough briefing since the appeal was argued to have difficulty remembering too much about my choice of cases.

In my circuit, the local rule allows but discourages the citation of unpublished opinions. Accordingly, a rule change permitting the citation to

unpublished opinions will not change how I do an appeal. In my circuit

such a rule change may cause my circuit to delete the phrase discouraging

the citation to unpublished cases from that rule. Accordingly, the rule

change to the Federal Rules of Appellate Procedure may encourage greater

citation to unpublished cases in my circuit (or may not).

In addition to responding to the survey itself, I would respectfully

submit the following observations for your consideration.

(1) The fact that some “unpublished” cases are presently being published by West, and the fact that some circuits permit the citation to unpublished opinions may mean that the distinction between published and unpublished cases is becoming less of a distinction. Hopefully, the survey responses will help you meaningfully determine whether local circuit rules

permitting the citation of unpublished opinions in fact actually result in

attorneys taking advantage of such a rule and citing to unpublished opinions.

(2) If such a rule change were to result in more attorneys citing to unpublished opinions, the rule change would serve the public objective of

encouraging greater scrutiny of unpublished opinions by other jurists and

the public. It may further the objective of holding judges and their clerks

accountable to the public and to our system of justice to the extent that the

highlighting of bad unpublished opinions makes other jurists aware of jurisprudential error. The other judges might be able to fix the problem unless the unpublished cases are reheard en banc or unless the issue arises

again in another case. However, highlighting problems in the unpublished

jurisprudence may mean that judges become aware of issues that have

been incorrectly resolved in unpublished opinions but for which there has

not yet been a published opinion issued. Once they become aware of bad

decisions, concerned judges in the circuit in which this decision was issued

may then choose to hear another case en banc regarding the issue that the

unpublished opinion improperly decided so that the published precedent

takes the right approach to a particular problem. Potentially, depending on
Citing Unpublished Opinions in Federal Appeals

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the timing of the hearing of this other case, this issue could result in the

correction of the unpublished opinion in a hearing en banc or even in the

context of a section 2255 motion (in the rare case in which the issues were

important enough).

On the other hand, problems in published jurisprudence, it could be

argued, are highlighted by the losing party. If a petition for rehearing en

banc were filed by the alleged victim of allegedly bad jurisprudence, then

the judges would arguably have the same opportunity to review and scrutinize the unpublished opinion as they would if the unpublished opinion

were brought to their attention by citation to this authority in briefs in

other cases. However, this argument fails, because the aggrieved party in a

civil case (other than one in which counsel is appointed) may not have the

money to continue to pursue the appeal after the unpublished opinion is

issued. Thus, under the current system, in circuits where the citation to

unpublished opinions is prohibited, the degree of scrutiny by other judges

of fellow jurists’ unpublished opinions may depend at least to some extent

on the financial situation of the parties involved in the litigation, even if the

mistake is egregious and may be repeated in future cases by the same

panel of judges.

Accordingly, I feel a set of appellate rules which does not promote or

permit the citation of unpublished opinions (assuming that more unpublished opinions would be cited under such a system) provides for less judicial (and possibly public) scrutiny of unpublished opinions than a system

which does permit the citation of unpublished opinions.

(3) Louisiana lawyers working on cases involving state law cite in

their briefs to cases from their higher courts. However, because in matters

of state law Louisiana lawyers work under the French civil law system,

such higher court cases are not binding on Louisiana lower courts. Accordingly, citing to any Louisiana court case in a Louisiana matter probably has

the same effect as citing to unpublished case law in federal court. Because

of this parallel, it may be possible to predict some of the effects of this proposed rule change by studying the dynamics of the effect of citing nonbinding case law in Louisiana courts and how Louisiana’s view of its own

case law impacts how attorneys handle appeals involving solely questions

of state law.

A–227 (supportive, Seventh Circuit). I imagine that it would help

practitioners because it can be frustrating to find an unpublished case that

is very on point and not be able to cite it, even just as persuasive authority.

But I think the effect on the courts themselves would not be entirely positive. Would such a rule eliminate the practical difference between published and unpublished opinions? Sometimes judges do not dissent in a

particular instance because they know the decision will be unpublished. If
Citing Unpublished Opinions in Federal Appeals

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a judge in that instance knew the opinion could be cited, he or she might

decide to dissent after all.

A–228 (supportive, Sixth Circuit). The distinction between published

and unpublished opinions is eroding, and such a new rule would assist in

eliminating this distinction.

A–229 (neutral, Third Circuit). Unpublished opinions would look

more like published opinions. In immigration matters, unpublished decisions tend to be denials of the alien’s claims. Publishing more denials

would help serve as a useful guide to practitioners to identify those claims

not worth pursuing administratively or before the courts.

c. Should Be Precedent

Twelve attorneys suggested that maybe the courts’ opinions should always

be published or always be precedential. Most of these attorneys (nine)

supported the proposed rule; three were neutral.

A–230 (supportive, Third Circuit). In my case, I do not remember encountering any unpublished opinions that I would have liked to cite but

did not cite as a result of any rule concerning the citation of unpublished

opinions.

As you know, there are different kinds of unpublished opinions. If an

opinion is available from Westlaw or Lexis, I do not see any reason why it

should be treated any differently from an opinion published in the West

reporter system. There is more reason for concern if the opinion is only

published in a specialized service or periodical, and even more if it is truly

unpublished and must be obtained from the court or the parties.

In general, however, I feel strongly that no court should be permitted

to deny precedential effect to any of its decisions. Doing so is unfair to the

losing party, who in effect is being told that the court is deciding the case

against him for reasons it would not apply to other litigants. It is unfair to

future litigants, who are being told that the court may not decide a case in

their favor even though it decided an indistinguishable case in favor of a

similarly situated party. Although it is usually undesirable for an appellate

court to make a decision without any explanation at all, I think this is preferable to issuing an explanation that is not based on principles to which the

court is willing to give general application.

For these reasons, I think it should be permissible to cite any decision,

published or unpublished. In general, I do not think that one party’s citation of an unpublished opinion subjects the other party to any unfairness

or significant burden so long as the other party receives a copy of the opinion and an opportunity to respond. If an unpublished opinion is cited for

the first time in a reply brief, it may be desirable to give the appellee an

opportunity to make a submission to address it.
Citing Unpublished Opinions in Federal Appeals

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A–231 (supportive, Eighth Circuit). It is difficult to say what impact

such a rule would have because, in most cases, you are able to find a published decision that states the same point for which you might want to cite

an unpublished opinion. However, when you need to cite an unpublished

opinion because there is no other authority on point, there should be no

obstacle to doing so. Such a rule likely will not lead to wholesale citation to

unpublished opinions, but might make a considerable difference in some

cases. I also support such a rule for the reasons stated in Judge Richard

Arnold’s withdrawn opinion on unpublished opinions in the Eighth Circuit.

A–232 (supportive, Eighth Circuit). It might give appellate courts

more pause when issuing short opinions limited to the particular facts of a

case. I think permitting citation to unpublished opinions is a good idea,

mainly for the reasons set forth in Judge Richard Arnold’s opinion on the

matter, which was later withdrawn. From the advocate’s standpoint, I

think it will be helpful.

A–233 (supportive, Fifth Circuit). I do not know what impact this rule

change will have. I do, however, support the rule change and believe all

opinions should be published. In my practice of over 25 years, I have had

opinions both favorable and unfavorable to my clients be designated as

“unpublished” and have never understood the logic underlying the rule.

A–234 (supportive, District of Columbia Circuit). In my opinion, the

core question is what impact would permitting citation to unpublished

opinions have on courts of appeals, not appellate practitioners. Permitting

citation to unpublished opinions could well have the beneficial effect of

encouraging courts of appeals to discontinue their use.

A–235 (supportive, Second Circuit). I would expect the rule to make

courts of appeals somewhat more careful about what they say in “unpublished” opinions. I believe the orderly developmental and uniform application of the law would be enhanced by a rule prohibiting the designation of

opinions as “unpublished” or “non-binding.”

A–236 (supportive, Federal Circuit). I believe it would be beneficial

and improve the quality of legal opinions of the courts. I further believe

that there should be no “unpublished” opinions.

A–237 (supportive, District of Columbia Circuit). I believe that the

new proposed rule is a good idea. A better idea though would be to not

have unpublished decisions except in the most routine cases.

A–238 (supportive, Eighth Circuit). I am hugely in favor of this rule. I

do not think unpublished opinions should be less valuable than published

opinions. A decision is a decision.

A–239 (neutral, Tenth Circuit). I would have some concern that such a

rule, if enacted abruptly, would permit citation to opinions that are sometimes not well thought out. I believe a better rule would be to allow citation
Citing Unpublished Opinions in Federal Appeals

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to opinions that are written after the date the rule becomes effective. At

bottom, I believe there should be no unpublished opinions. Things should

be left the way they are for previous unpublished opinions and, in the future, there should be none allowed.

A–240 (neutral, Second Circuit). There would be no point to citing the

unpublished opinions if they are not binding precedent. I would prefer that

the opinions be considered to have the same precedential value as any

other appellate decision. This would be of great help to my appellate practice.

A–241 (neutral, Tenth Circuit). The impact would depend on how the

court was to consider the precedential value of the unpublished opinion. If

such opinions have some value, then it makes no sense to allow the courts

of appeals to issue unpublished opinions.

6. Other Comments

Sixty-six attorneys provided other comments: 32 were supportive of the

proposed rule, 31 were neutral, and three were opposed to it.

a. Other Supportive Comments

Thirty-two attorneys provided other supportive comments.

A–242 (supportive, Fifth Circuit). I would hope that all written decisions, whether published or not, could be cited in any appeal brief. The

reasoning of the written decision and how a particular panel addressed an

issue should always be available to other panels deciding the same issue.

Besides, it makes no sense to have a “class” of decisions that cannot be

relied on in any manner.

A–243 (supportive, District of Columbia Circuit). I believe that the

proposed rule is a good one, and one that will have a very minimal impact

on the workload of the attorneys preparing appellate briefs. I have never

understood the reasoning behind the rule forbidding the citation of an unpublished decision.

A–244 (supportive, Sixth Circuit). I think it would improve federal

court practice, and I doubt that it would make federal practice any more

burdensome. Attorneys might spend a bit more time researching, but could

probably reduce time spent writing memoranda.

A–245 (supportive, Third Circuit). I think the rule permitting citation

to the courts of appeals’ unpublished opinions should be enacted. Courts

should determine whether all cases are applicable, not just those deemed to

be worthy of publication.

A–246 (supportive, Sixth Circuit). It would help ensure awareness of

counsel and court personnel of case law development. Assistance in track-
Citing Unpublished Opinions in Federal Appeals

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ing trends would be of such benefit so as to outweigh any detriment in research time and cost.

A–247 (supportive, District of Columbia Circuit). Allowing these opinions to carry persuasive weight affords a reasonable compromise between

the Ninth Circuit’s concerns regarding judicial economy and the Eighth

Circuit’s constitutional concerns.

A–248 (supportive, Eighth Circuit). I believe that permitting citations

to unpublished opinions would be helpful to the appellate court when the

opinions are relevant to the case.

A–249 (supportive, First Circuit). It would be occasionally helpful for

the reviewing court, without being more burdensome for litigators. I favor

the rule change.

A–250 (supportive, Sixth Circuit). It would make the appellate attorney’s work somewhat easier when there is a desire to cite unreported cases

with similar issues.

A–251 (supportive, Fifth Circuit). Other than my answer to question 5

above (much less burdensome), I do not have an expectation.

A–252 (supportive, Fifth Circuit). It would make a positive impact. I

support allowing attorneys to cite to an unpublished opinion.

A–253 (supportive, Sixth Circuit). Such a rule would certainly benefit

the participants as well as the courts.

A–254 (supportive, Sixth Circuit). It is an important change. All decisions should be available for citation.

A–255 (supportive, Tenth Circuit). Little or no impact. Unpublished

opinions are often more helpful than not.

A–256 (supportive, Third Circuit). I think it’s a good idea but it probably will not make that much difference.

A–257 (supportive, Tenth Circuit). The new rule would actually aid in

the presentation of cases.

A–258 (supportive, Sixth Circuit). It would be an improvement over

the status quo.

A–259 (supportive, First Circuit). It would be helpful to counsel and

the courts.

A–260 (supportive, Eleventh Circuit). I believe that it would be a good

rule to adopt.

A–261 (supportive, District of Columbia Circuit). Same. I would welcome this rule change.

A–262 (supportive, Eighth Circuit). It would assist appellate research.

A–263 (supportive, Second Circuit). I would fully support the change.

A–264 (supportive, Ninth Circuit). Would be helpful and appreciated.

A–265 (supportive, First Circuit). I believe it would be helpful.
Citing Unpublished Opinions in Federal Appeals

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A–266 (supportive, Third Circuit). I think it would be useful.

A–267 (supportive, Second Circuit). This would be a good idea.

A–268 (supportive, Third Circuit). It would promote justice.

A–269 (supportive, District of Columbia Circuit). Beneficial impact.

A–270 (supportive, Fourth Circuit). Extremely helpful.

A–271 (supportive, District of Columbia Circuit). A positive effect.

A–272 (supportive, Federal Circuit). A positive impact.

A–273 (supportive, Eighth Circuit). Positive.

b. Other Neutral Comments

Thirty-one attorneys provided miscellaneous neutral comments.

A–274 (neutral, Second Circuit). The primary impact would be that I

would rely more upon computer searches of Lexis and Westlaw than I currently do. Now I find the digests of unreported cases in statutory and other

compilations provide a thorough review of the law on a particular topic. If

unpublished decisions may be cited, I would supplement my current digest and computer research with greater computer research.

A–275 (neutral, Sixth Circuit). None. The Sixth Circuit’s Rule 26(a) allows a party to cite unpublished opinions if one feels the need to do so. In

practice, I believe lawyers will cite the cases if they are helpful. I think

there might be an impact if the rule explicitly stated that there is no distinction in precedential value, but only after a long period of time operating

under such a rule.

A–276 (neutral, Eleventh Circuit). Unpublished opinions may be cited

as persuasive authority in the Eleventh Circuit. United States v. Futrell, 209

F.3d 1286, 1289 (11th Cir. 2000) (citing 11th Cir. R. 36–2); United States v.

Rodriquez-Lopez, 365 F.3d 1134, 1138 n.4 (11th Cir. 2004); United States v.

Liss, 265 F.3d 1220, 1228 n.2 (11th Cir. 2001).

A–277 (neutral, Sixth Circuit). The Sixth Circuit would surrender totally to its fear of commitment and stop publishing anything; the Federal

Appendix would take on value and, in time, further enrich West Publishing.

A–278 (neutral, Third Circuit). I do not see such a rule as having a

“sea change” impact on appellate practice. Rather, it would be a common

sense way of putting on the table issues that are under discussion already.

A–279 (neutral, Tenth Circuit). I think it should be limited to your

own circuit. Otherwise it would be considerably more work with little consequence on the outcome.

A–280 (neutral, Seventh Circuit). It would make citations to unpublished opinions on points that should be made by courts in published opinions.
Citing Unpublished Opinions in Federal Appeals

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A–281 (neutral, Federal Circuit). Very little, because I work only before the Federal Circuit and its published opinions are normally sufficient.

A–282 (neutral, Sixth Circuit). Minimal. The Sixth Circuit, where I

practice, already freely allows citation of unpublished opinions.

A–283 (neutral, Eighth Circuit). No impact on the parties. It would

probably impact the court more.

A–284 (neutral, District of Columbia Circuit). I would not expect it to

have any significant impact.

A–285 (neutral, Seventh Circuit). It would have no appreciable impact

on the work.

A–286 (neutral, Seventh Circuit). It would have no appreciable impact.

A–287 (neutral, Tenth Circuit). More people would cite them.

A–288 (neutral, Eighth Circuit). No appreciable impact.

A–289 (neutral, District of Columbia Circuit). No appreciable impact.

A–290 (neutral, Sixth Circuit). Very little impact.

A–291 (neutral, Eighth Circuit). Not much impact.

A–292 (neutral, Third Circuit). Little or none.

A–293 (neutral, Ninth Circuit). Little impact.

A–294 (neutral, First Circuit). Very little.

A–295 (neutral, Third Circuit). Very little.

A–296 (neutral, Sixth Circuit). Very little.

A–297 (neutral, Fifth Circuit). Don’t know.

A–298 (neutral, Sixth Circuit). Uncertain.

A–299 (neutral, Eighth Circuit). Not much.

A–300 (neutral, Eighth Circuit). Unknown.

A–301 (neutral, Fifth Circuit). Minimal.

A–302 (neutral, Eleventh Circuit). Minimal.

A–303 (neutral, Eighth Circuit). None.

A–304 (neutral, Tenth Circuit). None.

c. Other Comments in Opposition

Three attorneys provided miscellaneous comments in opposition to the

proposed rule.

A–305 (opposed, Third Circuit). I presume that the courts act with

care in designating opinions as precedential or not and issue the precedential opinions as guides. I would expect the proposed rule to have the effect

of complicating and diluting these guiding principles.

A–306 (opposed, Sixth Circuit). It would make appellate practice more

burdensome.

A–307 (opposed, Ninth Circuit). A bad impact.
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Appendix C:

Citations in Federal Appellate Case Files

We examined 650 cases selected at random from among the appeals filed in

2002 in the 13 federal courts of appeals—50 cases for each circuit. We examined how each case was resolved—published opinion, unpublished

opinion, or docket judgment—and we examined all citations in the counseled briefs and the opinions in the case files. This appendix includes descriptions of all citations to nonstatutory authorities in the case files.

Of the 650 cases in this sample, 537 are appeals from district courts,

62

five are appeals from the United States Tax Court,

63 47 are appeals from the

Board of Immigration Appeals,

64 and 61 are appeals from other courts and

agencies.

65

 

62. This includes 495 appeals in the numbered circuits, ranging from 36 in the Ninth

Circuit to 49 in the Eleventh Circuit.

63. This includes one case in the Second Circuit, one case in the Fifth Circuit, two cases

in the Sixth Circuit, and one case in the Eighth Circuit.

64. The sample includes appeals from the Board of Immigration Appeals (BIA) in all

numbered circuits except for the Eighth Circuit. In this sample there are 14 BIA appeals in

the Ninth Circuit, 12 in the Second Circuit, and from one to four in each of the other numbered circuits with BIA appeals.

65. This includes 20 District of Columbia Circuit cases and 38 Federal Circuit cases. The

other three cases are an appeal from the Federal Energy Regulatory Commission in the First

Circuit, an appeal from the National Labor Relations Board in the Eighth Circuit, and an

appeal from the Office of Workers Compensation Programs in the Tenth Circuit.
Citing Unpublished Opinions in Federal Appeals

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1. First Circuit66

Until recently, the First Circuit did not permit

citation to unpublished opinions in unrelated

cases; but now the circuit permits such citation if the opinion is persuasive and there is

no published opinion on point.

67

Of the 50 cases randomly selected, 46 are

appeals from district courts (23 from the District of Massachusetts, 17 from the District of

Puerto Rico, four from the District of Maine,

and two from the District of New Hampshire),68 three are appeals from the Board of

Immigration Appeals, and one is an appeal

from the Federal Energy Regulatory Commission.

69

The publication rate in this sample is

24%. Twelve of the cases were resolved by

published opinions (11 signed and one per

curiam), two were resolved by unpublished

per curiam opinions published in the Federal

Appendix, and 36 were resolved by docket

judgments.

Published opinions averaged 4,335

words in length, ranging from 1,955 to 9,157.

Unpublished opinions averaged 904 words in

 66. Docket sheets and opinions are on PACER. Both

published and unpublished opinions are also on the

court’s Web and intranet sites and on Westlaw. Briefs

are usually filed electronically, but were available to us

from the court only by e-mail.

67. 1st Cir. L.R. 32.3(a)(2) (“Citation of an unpublished opinion of this court is disfavored. Such an opinion may be cited only if (1) the party believes that the

opinion persuasively addresses a material issue in the

appeal; and (2) there is no published opinion from this

court that adequately addresses the issue. The court

will consider such opinions for their persuasive value

but not as binding precedent.”).

The court adopted a rule proscribing citation to its

unpublished opinions November 4, 1971, but on December 16, 2002, the court adopted the current rule

permitting such citation if there is no published opinion

on point.

68. This sample did not include any appeals from

the District of Rhode Island.

69. In 2002, 1,732 cases were filed in the court of appeals for the First Circuit.

length, ranging from 270 to 1,538. One opinion was under 1,000 words in length (7%, an

unpublished opinion), and this opinion was

also under 500 words in length.

70

Sixteen of the appeals were fully briefed.

In 27 of the appeals no counseled brief was

filed, and in seven of the appeals a counseled

brief was filed only for one side.

There are citations to unpublished court

opinions in seven of the cases. In two cases

the citations are only to opinions in related

cases; in five cases there are citations to unpublished opinions in unrelated cases. In one

case the court cited unrelated unpublished

opinions; in four other cases only the parties

cited unrelated unpublished opinions.

The two unrelated unpublished opinions

cited by the court in one of these cases are by

the court of appeals for another circuit. Of the

unrelated unpublished opinions cited by the

parties in these cases, one is by the court of

appeals for the First Circuit, one is by the

court of appeals for another circuit, two are

by First Circuit district courts, two are by

other district courts, and two are by state

courts.

C1–1. In an unsuccessful pro se appeal

of the district court’s refusal to modify a sentence for carjacking, United States v. Quiñones

Rodríguez (1st Cir. 02–2616, filed 12/19/2002,

judgment 06/17/2003), resolved by unpublished opinion at 70 Fed. Appx. 591, 2003 WL

21699845, the court distinguished in a footnote two unpublished opinions by the court

of appeals for the Eleventh Circuit apparently

cited by the appellant in his pro se brief.

C1–2. In an unsuccessful appeal of a

malpractice award, Primus v. Galgano (1st Cir.

02–1419, filed 04/26/2002, judgment

05/21/2003), resolved by published opinion

 70. The 36 docket judgments averaged 142 words in

length, ranging from 21 to 1,186. All but one was under

1,000 words in length; all but two were under 500

words in length.
Citing Unpublished Opinions in Federal Appeals

127

at 329 F.3d 236, both parties cited unpublished opinions.

The doctor’s brief cites three published

opinions by Massachusetts’s supreme judicial

court and one unpublished opinion by Massachusetts’s superior court in a string headed

by “see, e.g.,” to support a statement that “The

Plaintiff must demonstrate the injuries sustained were more likely caused by the negligent acts of the treating physician than any

other possible source of the injury.”

The plaintiff cited an unpublished 1997

opinion by the court of appeals for the First

Circuit as the first in a string of three opinions, including a published 1976 First Circuit

opinion, supporting a statement that the defendant precluded himself from arguing the

application of the statutory damages cap by

failing to ask for a jury instruction on the cap

or object to the instructions given.

C1–3. In an unsuccessful appeal of a district court judgment that insurance coverage

for legal defense did not include legal representation as a custodian of records in an investigation by the U.S. attorney, Center for

Blood Research, Inc. v. Coregis Insurance Co. (1st

Cir. 02–1011, filed 01/10/2002, judgment

09/30/2002), resolved by published opinion

at 305 F.3d 38, both parties cited unpublished

opinions.

The insured’s brief cites an unpublished

opinion by the court of appeals for the Seventh Circuit with published opinions by

Maryland’s court of special appeals and the

court of appeals for the Sixth Circuit to support a statement that “a mere letter identifying a person as the target of an investigation,

or requesting information, did not ‘demand

something of right’ and therefore did not

constitute a claim.” The brief cites an unpublished opinion by the district court for the

Northern District of Illinois with a published

decision by Massachusetts’s appeals court to

support a statement that “it would have been

unfair to the insured to require it to place itself at risk by subjecting itself to further legal

process in order to obtain the litigation defense protection for which it paid.” The brief

notes that the unpublished opinion was reversed on other grounds by a published opinion by the court of appeals for the Seventh

Circuit with quoted language that supports

the argument.

The insurance company’s brief cites an

unpublished opinion by California’s court of

appeal and a published opinion by Minnesota’s court of appeals to support a statement

that “an investigative subpoena is not a proceeding in which the insured ‘may be subjected to a binding adjudication of liability for

damages or other relief.’” The insurance

company’s reply brief informs the court that

the insured’s citation to an unpublished opinion by California’s court of appeal is in opposition to California’s rules of court and also

distinguishes the opinion.

C1–4. In an unsuccessful appeal of

summary judgment that an insurance company’s termination of the plaintiff’s longterm disability benefits did not violate

ERISA, Lopes v. Metropolitan Life Insurance Co.

(1st Cir. 02–2273, filed 10/04/2002, judgment

06/09/2003), resolved by published opinion

at 332 F.3d 1, both parties cited unpublished

opinions.

In a discussion of “the issue when the

plan administrator is also the issuing insurance company,” the insured’s brief quotes an

unpublished opinion by the district court for

the Middle District of Pennsylvania. The quotation begins, “A heightened arbitrary and

capricious standard will be applied because

there is a conflict of interest since the defendants both issued the policy and administer

claims made thereunder.”

The insurance company’s brief states

“This Court has not expressly decided

whether a reviewing court should consider

evidence outside of the administrative claim

file. At times, however, this Court has indicated that it is appropriate for a reviewing

court to limit its consideration to the informa-
Citing Unpublished Opinions in Federal Appeals

128

tion available to the administrator.” The brief

cites five district court opinions to support a

statement that “District courts in this circuit

have expressly and repeatedly held that such

a limited review is appropriate, particularly

when conducting a review under an arbitrary

and capricious standard.” One of these is an

unpublished opinion by the district court for

the District of Massachusetts, three are published opinions by the district court for the

District of Massachusetts, and one is a published opinion by the district court for the

District of Maine.

C1–5. In an unsuccessful appeal of a 10-

year drug sentence, United States v. Palmero

(1st Cir. 02–1398, filed 04/10/2002, judgment

02/07/2005), resolved by docket judgment,

the government noted that the Supreme

Court had granted review of a published

opinion by the court of appeals for the Seventh Circuit and an unpublished opinion by

the district court for the District of Maine in a

case that was subsequently resolved by

United States v. Booker, 125 S. Ct. 738 (2005).

Individual Case Analyses

Center for Blood Research, Inc. v. Coregis

Insurance Co. (1st Cir. 02–1011, filed 01/10/2002,

judgment 09/30/2002).

Appeal from: District of Massachusetts.

What happened: Unsuccessful appeal of a district court judgment that insurance coverage for

legal defense did not include legal representation

as a custodian of records in an investigation by

the U.S. attorney.

Appellant’s brief: The insured’s 6,043-word appellant brief cites 26 published opinions (two by

the First Circuit, three by other circuits, two by

districts in other circuits, seven by Massachusetts’s supreme judicial court, four by Massachusetts’s appeals court, one by Massachusetts’s superior court, one by Maine’s supreme judicial

court, one by Minnesota’s supreme court, two by

Minnesota’s court of appeals, two by Maryland’s

court of special appeals, and one by Michigan’s

court of appeals), two unpublished opinions (one

by another circuit and one by a district in another

circuit), and Black’s Law Dictionary.

The brief cites an unpublished Seventh Circuit

opinion with published opinions by Maryland’s

court of special appeals and the Sixth Circuit to

support the statement, “Courts which have found

the absence of a covered ‘claim’ usually have

done so based on the conclusion that a mere letter

identifying a person as the target of an investigation, or requesting information, did not ‘demand

something of right’ and therefore did not constitute a claim.” (Page 20.)

The brief cites an unpublished opinion by the

Northern District of Illinois with a published decision by Massachusetts’s appeals court to support

a statement that “it would have been unfair to the

insured to require it to place itself at risk by subjecting itself to further legal process in order to

obtain the litigation defense protection for which

it paid.” (Page 16.) The brief notes that the unpublished opinion was reversed on other grounds by

a published Seventh Circuit opinion with quoted

language that supports the argument.

Appellee’s brief: The insurance company’s 4,408-

word appellee brief cites 11 published opinions

(three by the Supreme Court, one by the First Circuit, one by another circuit, one by the District of

Massachusetts, one by a district in another circuit,

one by Massachusetts’s supreme judicial court,

one by Massachusetts’s appeal court, one by Massachusetts’s superior court, and one by Minnesota’s court of appeals), one unpublished opinion

by California’s court of appeal, and two dictionaries.

The brief cites an unpublished opinion by California’s court of appeal and a published opinion

by Minnesota’s court of appeals to support a

statement that “at least two courts have concluded that an investigative subpoena is not a

proceeding in which the insured ‘may be subjected to a binding adjudication of liability for

damages or other relief.’” (Pages 10–11.)

Appellant’s reply brief: The insured’s 2,605-word

reply brief cites three published opinions (one by

the District of Massachusetts, one by Massachusetts’s supreme judicial court, and one by Minnesota’s court of appeals), one unpublished opinion

by California’s court of appeal, and Black’s Law

Dictionary.

The reply brief cites the unpublished opinion

by California’s court of appeal relied on by the

appellee in order to inform the court that this citation is in opposition to the rules of the court that

issued the opinion. (Pages 8–9.) The brief also distinguishes the opinion. (Pages 9–10.)

Opinion: (3) The court’s published 2,209-word

signed opinion, Center for Blood Research, Inc. v.
Citing Unpublished Opinions in Federal Appeals

129

Coregis Insurance Co., 305 F.3d 38 (1st Cir. 2002)

(five headnotes), cites eight published opinions

(one by the First Circuit, six by Massachusetts’s

supreme judicial court, and one by Massachusetts’s appeals court) and the unpublished opinion by the District of Massachusetts in this case.

According to Westlaw (05/19/2005), the court’s

opinion has been cited in one published opinion

by the First Circuit, one unpublished opinion by a

district in another circuit, three secondary sources,

one appellate brief in one case before Illinois’s

supreme court, and four trial court briefs in four

cases (three in the District of Massachusetts and

one in a district in another circuit).

United States v. Pellowitz (1st Cir. 02–1052, filed

01/11/2002, judgment 03/13/2003).

Appeal from: District of Maine.

What happened: Pro se appeal by a criminal defendant of the denial of a motion for return of

briefcases denied, because the briefcases were returned to his parents.

Related case: United States v. Pellowitz (1st Cir.

02–1545, filed 05/09/2002, judgment 03/04/2003)

(unsuccessful pro se appeal of the denial of a request for production of American Express records, because the habeas corpus petition had not

yet been filed).

Appellee’s brief: The government’s 3,709-word

appellee brief cites 19 published opinions (four by

the U.S. Supreme Court, five by the First Circuit,

and 10 by other circuits).

Opinion: (1) The court’s 173-word docket

judgment cites two published First Circuit opinions.

United States v. Cacho-Negrete (1st Cir. 02–1147,

filed 02/06/2002, judgment 04/02/2002).

Appeal from: District of Puerto Rico.

What happened: Criminal appeal voluntarily

dismissed.

Related case: United States v. Cuevas-Rodriguez

(1st Cir. 02–1084, filed 01/24/2002, judgment

04/10/2002) (criminal appeal of codefendant

dismissed for lack of prosecution).

Opinion: (1) The court’s 26-word docket judgment cites no opinions.

Northeast Utilities Service Co. v. Federal Energy

Regulatory Commission (1st Cir. 02–1158, filed

02/11/2002, judgment 10/04/2002).

Appeal from: Federal Energy Regulatory Commission.

What happened: Unsuccessful appeal by New

England power companies of regulations concerning “installed capacity deficiency charges” for

electric power. State regulators and purchasing

utilities intervened.

Related cases: The briefs and opinion also covered two consolidated petitions: Sithe New England Holdings, LLC v. Federal Energy Regulatory

Commission (1st Cir. 01–1933, filed 06/29/2001,

judgment 10/04/2002) and Northeast Utilities Service Co. v. Federal Energy Regulatory Commission (1st

Cir. 01–1952, filed 07/02/2001, judgment

10/04/2002).

Petitioner’s brief: The petitioners’ 13,198-word

brief cites 27 published court opinions (nine by

the U.S. Supreme Court; three by the First Circuit,

including one in a related case; and 15 by other

circuits), 27 published administrative decisions

(25 by the Federal Energy Regulatory Commission, including 11 decisions related to this case,

and two by the Federal Power Commission), and

one treatise.

Intervenor’s brief: The intervenors’ 13,605-word

brief cites 26 published court opinions (two by the

U.S. Supreme Court; three by the First Circuit,

including one in a related case; and 21 by other

circuits) and 16 published decisions by the Federal Energy Regulatory Commission, including 12

decisions related to this case.

Respondent’s brief: The commission’s 8,667-

word respondent brief cites 18 published court

opinions (two by the U.S. Supreme Court; five by

the First Circuit, including one in a related case;

and 11 by another circuit) and 19 published administrative decisions (18 by the Federal Energy

Regulatory Commission, including nine decisions

related to this case, and one by the Federal Power

Commission).

Petitioner’s reply brief: The petitioner’s 6,795-

word reply brief cites 14 published court opinions

(two by the U.S. Supreme Court, two by the First

Circuit, and 10 by another circuit) and 14 published decisions by the Federal Energy Regulatory

Commission, including two decisions related to

this case.

Opinion: (3) The court’s published 3,602-word

signed opinion, Northeast Utilities Service Co. v.

Federal Energy Regulatory Commission, 308 F.3d 71

(1st Cir. 2002) (seven headnotes), cites nine published court opinions (three by the U.S. Supreme

Court; four by the First Circuit, including one in a

related case; and two by another circuit) and five

related published decisions by the Federal Energy

Regulatory Commission. According to Westlaw

(05/19/2005), the court’s opinion has been cited

in one published opinion by a district in the First

Circuit, one unpublished opinion by the District

of Columbia Circuit, two published decisions by
Citing Unpublished Opinions in Federal Appeals

130

the Federal Energy Regulatory Commission, five

secondary sources, one petition for a writ of certiorari in the U.S. Supreme Court, six appellate

briefs in two First Circuit cases, and one trial court

brief in a First Circuit district.

United States v. Doherty (1st Cir. 02–1228, filed

02/27/2002, judgment 03/01/2002).

Appeal from: District of Massachusetts.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s 22-word docket judgment cites no opinions.

Cirino-Morales v. McNeil Consumer Products,

Inc. (1st Cir. 02–1242, filed 03/01/2002, judgment

06/18/2002).

Appeal from: District of Puerto Rico.

What happened: Appeal voluntarily dismissed

by a plaintiff claiming disability discrimination in

employment.

Appellant’s brief: The plaintiffs’ 5,838-word appellant brief cites 35 published opinions (one by

the U.S. Supreme Court, nine by the First Circuit,

11 by other circuits, one by a district court in the

First Circuit, 10 by district courts in other circuits,

and three by bankruptcy courts in other circuits)

and one treatise.

Opinion: (1) The court’s 32-word docket judgment cites no opinions.

United States v. Cespedes (1st Cir. 02–1262, filed

03/13/2002, judgment 04/22/2002).

Appeal from: District of Massachusetts.

What happened: Criminal appeal voluntarily

dismissed.

Related cases: Consolidated with four other appeals: United States v. Hornbecker (1st Cir. 01–1969,

filed 07/10/2001, judgment 01/09/2003), United

States v. Vargas (1st Cir. 01–2549, filed 11/05/2001,

judgment 12/17/2003), United States v. Ramirez

(1st Cir. 01–2654, filed 11/28/2001, judgment

10/22/2002), United States v. Hernando-Ovalle (1st

Cir. 02–1251, filed 03/14/2002, judgment

12/18/2002). Subsequent to the termination of the

selected case, the appeal by Hornbecker was severed from the consolidation. In the appeals by

Hornbecker, Vargas, and Hernando-Ovalle, the

district court was affirmed; the appeal by Ramirez

was dismissed for lack of prosecution.

Opinion: (1) The court’s 21-word docket judgment cites no opinions.

United States v. De la Cruz-Tavares (1st Cir. 02–

1323, filed 03/26/2002, judgment 11/21/2003).

Appeal from: District of Puerto Rico.

What happened: Unsuccessful appeal of an illegal reentry sentence enhancement for a prior conviction of burglary as a prior crime of violence.

Related case: United States v. De la Cruz-Tavares

(1st Cir. 02–1324, filed 03/26/2002, judgment

06/05/2002) (criminal appeal dismissed as duplicative and for failure to prosecute).

Appellant’s brief: The defendant’s 2,557-word

appellant brief cites 11 published opinions (three

by the U.S. Supreme Court, six by the First Circuit, one by another circuit, and one by Puerto

Rico’s supreme court).

Appellee’s brief: The government’s 2,829-word

appellee brief cites eight published court opinions

(one by the U.S. Supreme Court, three by the First

Circuit, and four by other circuits) and one published decision by the Board of Immigration Appeals.

Opinion: (1) The court’s 197-word docket judgment cites three published opinions (one by the

U.S. Supreme Court, one by the First Circuit, and

one by another circuit).

In re Atlantic Pipe Corp. (1st Cir. 02–1339, filed

03/26/2002, judgment 09/18/2002).

Appeal from: District of Puerto Rico.

What happened: Partially successful petition for

a writ of mandamus. A pipe subcontractor in

complex litigation over damages resulting from

an aqueduct pipeline’s bursting objected to a

court order requiring it to participate and help

pay for mediation against its will. The court of

appeals held that the district judge had inherent

power to order such mediation, but the court’s

order did not provide for sufficient safeguards of

fairness.

Related cases: In re Atlantic Pipe Corp. (1st Cir.

02–2533, filed 12/03/2002, judgment 12/10/2002

(writ of prohibition denied)) and In re American

International Insurance Co. (1st Cir. 02–2661, filed

12/03/2003, judgment 03/04/2004 (writ of mandamus denied because the petitioner had not been

diligent in requesting that the district court rule

on its motion to dismiss)).

Petitioner’s brief: The petitioner’s 4,180-word

brief cites six published opinions (two by the U.S.

Supreme Court, three by the First Circuit, and one

by another circuit) and one Federal Judicial Center manual.

Respondent’s brief: The contractor’s 5,222-word

respondent brief cites 21 published opinions (six

by the U.S. Supreme Court, six by the First Circuit, two by another circuit, two by the District of

Puerto Rico, and five by districts in other circuits)

and the district court case “appealed.”
Citing Unpublished Opinions in Federal Appeals

131

Respondent’s brief: A start-up subcontractor’s

5,328-word respondent brief cites 19 published

opinions (four by the U.S. Supreme Court, six by

the First Circuit, two by another circuit, two by

the District of Puerto Rico, and five by districts in

other circuits) and the district court case “appealed.”

Respondent’s brief: The insurance companies’

1,454-word respondent brief cites no opinions.

Opinion: (3) The court’s published 5,823-word

signed opinion, In re Atlantic Pipe Corp., 304 F.3d

165 (1st Cir. 2002) (19 headnotes), cites 22 published opinions (six by the U.S. Supreme Court,

eight by the First Circuit, six by other circuits, and

two by districts in other circuits), an unpublished

order by the District of Puerto Rico in this case,

and six law review articles. According to Westlaw

(05/20/2005), the court’s opinion has been cited

in one published First Circuit dissent, one published opinion by a First Circuit bankruptcy court,

one published opinion by a district court in another circuit, one published opinion by Alabama’s

supreme court, one published opinion by Rhode

Island’s supreme court, one unpublished First

Circuit opinion, one unpublished opinion by the

Virgin Islands’ territorial court, 36 secondary

sources, one appellate brief in a Texas supreme

court case, and three trial court briefs in three

cases in districts in other circuits (two in district

courts and one in a bankruptcy court).

United States v. Palmero (1st Cir. 02–1398, filed

04/10/2002, judgment 02/07/2005).

Appeal from: District of Massachusetts.

What happened: Unsuccessful appeal of a 10-

year drug sentence.

Related cases: A codefendant’s appeal was voluntarily dismissed, United States v. Rodriguez (1st

Cir. 02–1397, filed 04/10/2002, judgment

09/16/2002).

Appellant’s brief: The defendant’s 9,376-word

appellant brief cites 26 published opinions (one by

the U.S. Supreme Court, nine by the First Circuit,

15 by other circuits, and one by a district in another circuit).

Appellee’s brief: The government’s 6,757-word

appellee brief cites 40 published opinions (15 by

the U.S. Supreme Court, 12 by the First Circuit,

and 13 by other circuits) and one unpublished

opinion by a First Circuit district.

The Supreme Court decided United States v.

Booker, 125 S. Ct. 738 (2005), after this case was

briefed, but before the court resolved the appeal.

The government’s brief cites the Seventh Circuit’s

published opinion in United States v. Booker, 376

F.3d 967 (7th Cir. 2004), and notes that the Supreme Court granted review of that case and a

pending First Circuit appeal of the unpublished

opinion by the District of Maine resolving United

States v. Fanfan, 2004 WL 1723114 (D. Me. 2004).

Opinion: (1) The court’s 245-word docket judgment cites two published opinions (one by the

U.S. Supreme Court and one by the First Circuit).

A petition for rehearing filed 04/04/2005 is pending.

Primus v. Galgano (1st Cir. 02–1419, filed

04/26/2002, judgment 05/21/2003).

Appeal from: District of Massachusetts.

What happened: Unsuccessful appeal of a malpractice award of $1,460,000. The plaintiff, who

received healthcare from military physicians because her husband is in the military, sued an Arizona government doctor and a Massachusetts private doctor for failure to diagnose and treat breast

cancer. She filed an action against the Arizona

surgeon in the District of Arizona and an action

against Dr. Galgano in the District of Massachusetts. The actions were consolidated in the District

of Massachusetts. In a published opinion, Primus

v. Galgano, 187 F. Supp. 2d 1 (D. Mass. 2002), the

district court denied Dr. Galgano’s motions

arguing that the evidence did not support the

verdict and the damages should be capped by a

Massachusetts statute.

The court of appeals affirmed, holding as a

matter of first impression that a defendant waives

a right to the Massachusetts statutory damages

cap unless the defendant seeks an appropriate

jury instruction.

Related case: Primus v. United States (1st Cir. 04–

1085, filed 01/22/2004, judgment 11/17/2004)

(unsuccessful civil appeal of a bench trial verdict

in favor of the government doctor).

Appellant’s brief: The doctor’s 4,533-word appellant brief cites 13 published opinions (one by

another circuit, seven by Massachusetts’s supreme

judicial court, and five by Massachusetts’s appeals

court), one unpublished opinion by Massachusetts’s superior court, and the related case against

the government doctor.

The brief cites three published opinions by

Massachusetts’s supreme judicial court and one

unpublished opinion by Massachusetts’s superior

court in a string headed by “see, e.g.,” to support

the statement, “The Plaintiff must demonstrate

the injuries sustained were more likely caused by

the negligent acts of the treating physician than

any other possible source of the injury.” (Page 9.)

Appellee’s brief: The plaintiff’s 6,488-word appellee brief cites 16 published opinions (one by

the U.S. Supreme Court, three by the First Circuit,
Citing Unpublished Opinions in Federal Appeals

132

one by another circuit, the District of Massachusetts’s opinion in this case, seven by Massachusetts’s supreme judicial court, and three by Massachusetts’s appeals court), one unpublished First

Circuit opinion, one treatise, and the Restatement

(Second) of Torts.

The cited unpublished opinion is a 1997 First

Circuit opinion appearing as the first in a string

citation of three opinions, including one published 1976 First Circuit opinion, supporting the

statement that the defendant precluded himself

from arguing the application of the statutory

damages cap by failing to ask for a jury instruction on the cap or object to the instructions given.

(Page 6.)

Appellant’s reply brief: The doctor’s 741-word

reply brief cites three published opinions by Massachusetts’s appeals court.

Opinion: (3) The court’s published 5,380-word

signed opinion, Primus v. Galgano, 329 F.3d 236

(1st Cir. 2003) (13 headnotes), cites 13 published

opinions (seven by the First Circuit, the District of

Massachusetts’s opinion in this case, and five by

Massachusetts courts) and one law review note. In

addition, the opinion gives the case number for

the action transferred from the District of Arizona.

According to Westlaw (05/20/2005), the court’s

opinion has been cited in six published opinions

(three in the First Circuit, two in the District of

Massachusetts, and one in a First Circuit district),

eight secondary sources, and three trial court

briefs in two District of Massachusetts cases.

Lu v. Harvard School of Dental Medicine (1st Cir.

02–1420, filed 04/18/2002, judgment 10/29/2002).

Appeal from: District of Massachusetts.

What happened: A pro se plaintiff appealed the

dismissal of his qui tam action. According to the

appellees’ brief, the plaintiff had a history of filing

lawsuits based on vague allegations of widespread conspiracy. The appellees were granted a

summary affirmance “for the reasons given by the

district judge.”

Appellee’s brief: The defendants’ 3,166-word

appellee brief cites nine published opinions (five

by the First Circuit, two by other circuits, one by

the District of Massachusetts, and one by another

First Circuit district).

Opinion: (1) The court’s 53-word docket judgment cites no opinions.

Santana v. United States (1st Cir. 02–1437, filed

04/22/2002, judgment 08/26/2003).

Appeal from: District of Puerto Rico.

What happened: Successful appeal of the denial

of qualified immunity. A newly elected governor

of Puerto Rico, a member of the Popular Democratic Party, abruptly fired the executive director of

Puerto Rico’s Human Resources and Occupational Development Council, a member of the

New Progressive Party, who was appointed to

that position by the previous governor, also a

member of the New Progressive Party. The district court denied motions for qualified immunity

by the governor, and the current executive director of the Human Resources and Occupational

Development Council, Puerto Rico’s secretary of

labor and human resources. Each appealed. The

selected case is an appeal by an employee of the

United States Department of Labor, also a defendant in the case, of what he called a constructive

denial of qualified immunity. These appeals were

consolidated. The plaintiff did not respond to the

federal employee’s appellant brief because a motion to dismiss his appeal for lack of jurisdiction

was pending.

Related cases: The court’s opinion resolved the

two consolidated appeals, Santana v. Calderón (1st

Cir. 02–1436, filed 04/22/2002, judgment

08/26/2003) (appeal by the governor and the current executive director) and Santana v. Rivera (1st

Cir. 02–1438, filed 04/22/2002, judgment

08/26/2003) (appeal by the secretary of labor and

human resources), and facially resolved the selected appeal because it bore that appeal’s case

number. A consolidated interlocutory appeal by

the plaintiff was dismissed as premature, Santana

v. Calderón (1st Cir. 02–1439, filed 04/22/2002,

judgment 08/21/2002).

Appellant’s brief: The federal government’s

3,679-word appellant brief cites 25 published

opinions (nine by the U.S. Supreme Court, nine by

the First Circuit, four by other circuits, and three

by the District of Puerto Rico).

Opinion: (3) The court’s published 6,581-word

signed opinion, Santana v. Calderón, 342 F.3d 18

(1st Cir. 2003) (five headnotes), cites 22 published

opinions (13 by the U.S. Supreme Court; seven by

the First Circuit; and two by the District of Puerto

Rico, including the decision appealed). According

to Westlaw (05/20/2005), the court’s opinion has

been cited in six First Circuit opinions (five published and one unpublished), two published opinions by other circuits, nine published opinions by

the District of Puerto Rico, four opinions by other

First Circuit districts (one published and three

unpublished), one published opinion by Montana’s supreme court, four secondary sources, two

appellate briefs in one First Circuit case, and two

trial court briefs in one case in a First Circuit district.
Citing Unpublished Opinions in Federal Appeals

133

Vinnie v. Maloney (1st Cir. 02–1511, filed

05/03/2002, judgment 01/31/2003).

Appeal from: District of Massachusetts.

What happened: Certificate of appealability denied.

Related cases: The selected case was consolidated with Vinnie v. Maloney (1st Cir. 02–1587,

filed 05/21/2002, judgment 01/31/2003) (certificate of appealability denied). Previous appeals

include Vinnie v. Department of Corrections (1st Cir.

97–2317, filed 11/14/1997, judgment 12/17/1997)

(interlocutory appeal dismissed for lack of jurisdiction) and Vinnie v. Department of Corrections (1st

Cir. 00–2099, filed 09/14/2000, judgment

06/01/2001) (unsuccessful prisoner appeal). A

subsequent appeal was terminated on the same

day as the selected case, Vinnie v. Maloney (1st Cir.

02–2175, filed 09/16/2002, judgment 01/31/2003)

(certificate of appealability denied).

Opinion: (1) The court’s 188-word docket judgment cites two U.S. Supreme Court opinions.

United States v. Morales-Rodriquez (1st Cir. 02–

1522, filed 05/07/2002, judgment 06/25/2002).

Appeal from: District of Puerto Rico.

What happened: Criminal appeal dismissed for

failure to prosecute.

Related cases: A concurrent appeal by the same

appellant was briefed and proceeded to judgment,

United States v. Morales-Rodriguez (1st Cir. 02–1521,

filed 05/07/2002, judgment 02/24/2003 (ineffective assistance of counsel claim deferred, but sentence vacated upon the government’s admission

that it breached a plea agreement). Also dismissed

for failure to prosecute was United States v.

Morales-Rodriguez (1st Cir. 02–1523, filed

05/07/2002, judgment 06/25/2002).

Opinion: (1) The court’s 82-word docket judgment cites no opinions.

Jose v. Verdini (1st Cir. 02–1581, filed 05/15/2002,

judgment 06/03/2003).

Appeal from: District of Massachusetts.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 32-word docket judgment cites no opinions.

United States v. Santiago (1st Cir. 02–1610, filed

05/29/2002, judgment 03/06/2003).

Appeal from: District of Massachusetts.

What happened: Unsuccessful criminal appeal of

a conviction for unlawful possession of ammunition.

Appellant’s brief: The defendant’s 5,276-word

appellant brief cites 10 published opinions (nine

by the First Circuit and one by another circuit).

Appellee’s brief: The government’s 2,592-word

appellee brief cites 17 published opinions (14 by

the First Circuit and three by other circuits).

Opinion: (1) The court’s 171-word docket

judgment cites three published First Circuit opinions.

Felix v. McDonald (1st Cir. 02–1626, filed

05/24/2002, judgment 08/22/2002).

Appeal from: District of Massachusetts.

What happened: Pro se prisoner appeal voluntarily dismissed.

Related cases: Several other appeals by the prisoner were dismissed as premature, Felix v. Canty

(1st Cir. 02–1627, filed 05/29/2002, judgment

09/25/2002), Felix v. Walsh (1st Cir. 02–1628, filed

05/30/2002, judgment 09/25/2002), Felix v.

Prouty (1st Cir. 02–1629, filed 05/30/2002, judgment 09/25/2002), Felix v. Nunes (1st Cir. 02–1630,

filed 05/30/2002, judgment 09/25/2002), Felix v.

Commonwealth of Massachusetts (1st Cir. 02–1631,

filed 05/31/2002, judgment 09/25/2002), Felix v.

Harshbarger (1st Cir. 02–1632, filed 05/31/2002,

judgment 09/25/2002), Felix v. Sasuti (1st Cir. 02–

1633, filed 06/03/2002, judgment 09/25/2002),

Felix v. Singletory (1st Cir. 02–1634, filed

06/03/2002, judgment 09/25/2002) (13 appellants), and Felix v. Millis Plumbing Co. (1st Cir. 02–

1637, filed 06/03/2002, judgment 09/25/2002).

Case 02–1632 was also selected for this study.

Opinion: (1) The court’s 34-word docket judgment cites no opinion.

Felix v. Harshbarger (1st Cir. 02–1632, filed

05/31/2002, judgment 09/25/2002).

Appeal from: District of Massachusetts.

What happened: Pro se prisoner appeal dismissed as premature, because not all of the defendants had been dismissed, in a case against the

Department of Justice, the Commonwealth of

Massachusetts, the City of Boston, the Town of

Weymouth, the Weymouth Police Department,

133 individuals, and seven businesses.

Related cases: The court dismissed several of the

prisoner’s appeals as premature, Felix v. Canty (1st

Cir. 02–1627, filed 05/29/2002, judgment

09/25/2002), Felix v. Walsh (1st Cir. 02–1628, filed

05/30/2002, judgment 09/25/2002), Felix v.

Prouty (1st Cir. 02–1629, filed 05/30/2002, judgment 09/25/2002), Felix v. Nunes (1st Cir. 02–1630,

filed 05/30/2002, judgment 09/25/2002), Felix v.

Commonwealth of Massachusetts (1st Cir. 02–1631,

filed 05/31/2002, judgment 09/25/2002), Felix v.

Sasuti (1st Cir. 02–1633, filed 06/03/2002, judgment 09/25/2002), Felix v. Singletory (1st Cir. 02–

1634, filed 06/03/2002, judgment 09/25/2002),
Citing Unpublished Opinions in Federal Appeals

134

and Felix v. Millis Plumbing Co. (1st Cir. 02–1637,

filed 06/03/2002, judgment 09/25/2002). Another

appeal from the same district court case, also selected for this study, was dismissed voluntarily,

Felix v. McDonald (1st Cir. 02–1626, filed

05/24/2002, judgment 08/22/2002).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Newton (1st Cir. 02–1643, filed

05/29/2002, judgment 04/29/2003).

Appeal from: District of New Hampshire.

What happened: Unsuccessful criminal appeal.

The court held that a retrial the defendant agreed

to reluctantly was not double jeopardy.

Appellant’s brief: The defendant’s 11,965-word

appellant brief cites 33 published opinions (two

by the U.S. Supreme Court, 25 by the First Circuit,

and six by other circuits).

Appellee’s brief: The government’s 9,722-word

appellee brief cites 24 published opinions (seven

by the U.S. Supreme Court, 15 by the First Circuit,

and two by other circuits).

Appellant’s reply brief: The defendant’s 5,011-

word reply brief cites 11 published opinions (two

by the U.S. Supreme Court, eight by the First Circuit, and one by another circuit).

Opinion: (3) The court’s published 5,601-word

signed opinion, United States v. Newton, 327 F.3d

17 (1st Cir. 2003)

71 (19 headnotes), cites 19 published opinions (11 by the U.S. Supreme Court

and eight by the First Circuit). According to Westlaw (05/20/2005), the court’s opinion has been

cited in three published opinions by the First Circuit, one published opinion by another circuit, six

secondary sources, and three appellate briefs in

three cases (one in the First Circuit and two in

other circuits).

Washington v. United States (1st Cir. 02–1723,

filed 06/11/2002, judgment 02/13/2003).

Appeal from: District of Massachusetts.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 171-word docket judgment cites no opinions.

United States v. Cortes-Borrero (1st Cir. 02–1733,

filed 06/13/2002, judgment 11/25/2002).

Appeal from: District of Puerto Rico.

What happened: Criminal appeal voluntarily

dismissed.

Related cases: Consolidated cases include United

States v. Arroyo-Ruiz (1st Cir. 02–1524, filed

 71. Cert. denied, 540 U.S. 928 (2003).

05/06/2002, judgment 03/04/2003) (criminal appeal voluntarily dismissed), United States v. Lucena-Aviles (1st Cir. 02–1971, filed 08/08/2002,

judgment 01/27/2005) (partially successful criminal appeal), United States v. Delgado-Baez (1st Cir.

02–2049, filed 08/26/2002, judgment 03/17/2003)

(criminal appeal voluntarily dismissed), and

United States v. Jorge-Santiago (1st Cir. 02–2559,

filed 12/31/2002, judgment pending) (Anders motion pending72

). See also United States v. JorgeSantiago (1st Cir. 02–2558, filed 12/31/2002, judgment 01/30/2003) (dismissed as duplicative of

02–2559).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Norris (1st Cir. 02–1736, filed

06/28/2002, judgment 08/16/2002).

Appeal from: District of Puerto Rico.

What happened: Criminal appeal dismissed for

failure to file the notice of appeal on time.

Opinion: (1) The court’s 57-word docket judgment cites one U.S. Supreme Court opinion.

Guzman v. Immigration and Naturalization

Service (1st Cir. 02–1762, filed 06/20/2002,

judgment 04/25/2003).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal. The petitioner fled the Guatemalan military

during the Guatemalan civil war and entered the

United States illegally in 1990. In 1997, the INS

initiated deportation proceedings and the petitioner sought asylum on the ground that he

would be killed if he returned to Guatemala. The

court of appeals held that because his fear was

based mostly on a one-time kidnapping and because the civil war ended in 1996, he did not merit

asylum.

Petitioner’s brief: The petitioner’s 1,944-word

brief cites five published court opinions (one by

the U.S. Supreme Court, one by the First Circuit,

and three by other circuits) and one published

decision of the Board of Immigration Appeals.

Respondent’s brief: The government’s 4,122-

word brief cites 16 published court opinions

(three by the U.S. Supreme Court, six by the First

Circuit, and seven by other circuits) and two published decisions of the Board of Immigration Appeals.

 

72. See Anders v. California, 386 U.S. 738 (1976)

(holding that court-appointed appellate counsel may

seek to withdraw on the grounds that the appeal would

be frivolous only upon briefing the court of “anything

in the record that might arguably support the appeal”).
Citing Unpublished Opinions in Federal Appeals

135

Opinion: (3) The court’s published 2,300-word

signed opinion, Guzman v. Immigration and Naturalization Service, 327 F.3d 11 (1st Cir. 2003) (12

headnotes), cites 10 published opinions (two by

the U.S. Supreme Court, five by the First Circuit,

and three by other circuits). According to Westlaw

(05/20/2005), the court’s opinion has been cited

in 18 First Circuit opinions (14 published and four

unpublished), one published opinion by another

circuit, one administrative decision by the Board

of Immigration Appeals, two ALR federal articles,

18 appellate briefs in 16 cases (two briefs in two

U.S. Supreme Court cases, four briefs in four First

Circuit cases, and 12 briefs in 10 cases in other

circuits).

Leskinova v. Immigration and Naturalization

Service (1st Cir. 02–1802, filed 06/28/2002,

judgment 12/05/2002).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal.

Related case: Leskinova v. Immigration and Naturalization Service (1st Cir. 02–1803, filed

06/28/2002, judgment 12/05/2002) (husband’s

unsuccessful immigration appeal).

Opinion: (1) The court’s 210-word docket

judgment cites two published First Circuit opinions.

Andreyev v. Sealink, Inc. (1st Cir. 02–1808, filed

07/02/2002, judgment 08/20/2002).

Appeal from: District of Puerto Rico.

What happened: Appeal voluntarily dismissed

after the court observed that the order “does not

determine the rights and liabilities of any of the

parties to the action.”

Opinion: (1) The court’s 32-word docket judgment cites no opinions.

United States v. Leon (1st Cir. 02–1813, filed

07/03/2002, judgment 09/27/2002).

Appeal from: District of Massachusetts.

What happened: Voluntarily dismissed criminal

appeal by the government.

Opinion: (1) The court’s 34-word docket judgment cites no opinions.

Gómez-Candelaria v. Rivera-Rodríguez (1st Cir.

02–1838, filed 07/11/2002, judgment 09/18/2003).

Appeal from: District of Puerto Rico.

What happened: Successful appeal by a mayor

and director of human resources, both members

of the Popular Democratic Party, of a judgment of

employment discrimination against 24 municipal

employees who were members of the New Progressive Party. The court held that trial errors required a new trial.

Related case: The court’s opinion resolved four

appeals. The selected case was consolidated with

a second successful appeal by the mayor and director, which was filed after the district court denied their motion for judgment as a matter of law

and for a new trial, Gómez-Candelaria v. RiveraRodríguez (1st Cir. 02–2076, filed 08/29/2002,

judgment 09/18/2003). These appeals were consolidated with successful appeals by the municipality, Gómez-Candelaria v. Rivera-Rodríguez (1st

Cir. 02–1529, filed 05/06/2002, judgment

09/18/2003) (filed after the main verdict and

judgment) and Gómez-Candelaria v. RiveraRodríguez (1st Cir. 02–2077, filed 08/30/2002,

judgment 09/18/2003) (filed after the motion for a

new trial was denied).

Amicus brief: The Commonwealth of Puerto

Rico’s secretary of labor and human resources

filed a 4,066-word amicus curiae brief arguing

that the plaintiffs had no property interests in

their jobs and citing 11 published opinions (three

by the U.S. Supreme Court, five by the First Circuit, two by the District of Puerto Rico in this case,

and one by Puerto Rico’s supreme court) and one

unpublished order by the District of Puerto Rico

in a related case.

Appellant’s brief: The mayor and director’s

9,752-word appellant brief cites 40 published

opinions (10 by the U.S. Supreme Court and 30 by

the First Circuit) and one unpublished order by

the District of Puerto Rico in a related case.

Appellee’s brief: The plaintiffs’ 12,812-word appellee brief cites 35 published opinions (13 by the

U.S. Supreme Court, 16 by the First Circuit, and

six by other circuits), a deposition transcript from

a related case in the District of Puerto Rico, and

one treatise.

Appellant’s reply brief: The mayor and director’s

1,506-word reply brief cites two U.S. Supreme

Court opinions.

Opinion: (3) The court’s published 9,157-word73

signed opinion, Gómez v. Rivera Rodríguez, 344

F.3d 103 (1st Cir. 2003) (30 headnotes), cites 70

published opinions (nine by the U.S. Supreme

Court, 41 by the First Circuit, 15 by other circuits,

two by the District of Puerto Rico in this case, and

three by districts in other circuits), one treatise,

and the Restatement (Second) of Agency. According

to Westlaw (05/20/2005), the court’s opinion has

 

73. The word count does not include a 10-page appendix enumerating the damages awarded to each of

the 24 plaintiffs.
Citing Unpublished Opinions in Federal Appeals

136

been cited in six published opinions by the First

Circuit, 10 published opinions by the District of

Puerto Rico, one published opinion by another

district in the First Circuit, three unpublished

opinions by districts in other circuits, one unpublished opinion by Rhode Island’s superior court,

21 secondary sources, one verdict and settlement

summary, two appellate briefs in two cases (one

in another circuit and one in another state), and

six trial court briefs in six cases (two in a First Circuit district and four in a district in another circuit).

Guerrero v. Immigration and Naturalization

Service (1st Cir. 02–1844, filed 07/12/2002,

judgment 10/24/2002).

Appeal from: District of Massachusetts.

What happened: Immigration appeal unsuccessful by summary affirmance.

Related cases: Guerrero v. Immigration and Naturalization Service (1st Cir. 02–1209, filed

02/25/2002, judgment 03/14/2002) (immigration

appeal voluntarily dismissed) and Guerrero v. Immigration and Naturalization Service (1st Cir. 02–

1616, filed 05/22/2002, judgment 07/02/2002)

(unsuccessful habeas corpus appeal).

Opinion: (1) The court’s 41-word docket judgment cites one published First Circuit opinion.

Hughes v. Spencer (1st Cir. 02–1868, filed

07/19/2002, judgment 11/04/2002).

Appeal from: District of Massachusetts.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 92-word docket judgment cites one U.S. Supreme Court opinion.

Desir v. Hall (1st Cir. 02–1894, filed 07/26/2002,

judgment 10/23/2002).

Appeal from: District of Massachusetts.

What happened: Certificate of appealability denied.

Related case: Auborg v. Spencer (1st Cir. 02–1895,

filed 07/26/2002, judgment 10/23/2002) (certificate of appealability denied).

Opinion: (1) The court’s 47-word docket judgment cites no opinions.

Barnes v. Merrill (1st Cir. 02–1922, filed

08/01/2002, judgment 12/05/2002).

Appeal from: District of Maine.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 796-word docket

judgment cites 13 published opinions (four by the

U.S. Supreme Court, two by the First Circuit, and

seven by other circuits) and one treatise.

United States v. Wall (1st Cir. 02–1925, filed

08/01/2002, judgment 11/18/2003).

Appeal from: District of Maine.

What happened: Unsuccessful criminal appeal of

a conviction for distribution of cocaine that

caused a death.

Related case: The briefs and opinion also covered a consolidated unsuccessful appeal of a separate conviction for fraudulently acquiring supplies of Oxycontin, United States v. Wall (1st Cir.

02–1926, filed 08/01/2002, judgment 11/18/2003).

Appellant’s brief: The defendant’s 11,097-word

appellant brief cites 51 published opinions (13 by

the U.S. Supreme Court, 23 by the First Circuit, 14

by other circuits, and one by a district in another

circuit).

Appellee’s brief: The government’s 14,819-word

appellee brief cites 50 published opinions (eight

by the U.S. Supreme Court, 30 by the First Circuit,

and 12 by other circuits), The American Heritage

Dictionary, and the Social Security Administration’s ranking of popular first names on its website.

Appellant’s reply brief: The defendant’s 2,605-

word reply brief cites three published opinions

(one by the U.S. Supreme Court and two by the

First Circuit).

Opinion: (3) The court’s published 4,250-word

signed opinion, United States v. Wall, 349 F.3d 18

(1st Cir. 2003) (11 headnotes), cites 15 published

opinions (three by the U.S. Supreme Court, 11 by

the First Circuit, and one by another circuit). According to Westlaw (05/20/2005), the court’s

opinion has been cited in two published First Circuit opinions, two secondary sources, and two

appellate briefs in two cases (one in the First Circuit and one in another circuit).

Compton v. Deputy Orthopaedics (1st Cir. 02–

1933, filed 08/02/2002, judgment 11/13/2002).

Appeal from: District of Massachusetts.

What happened: Employment discrimination

appeal dismissed for failure to file a brief.

Opinion: (1) The court’s 84-word docket judgment cites no opinions.

United States v. Uribe-Londono (1st Cir. 02–2027,

filed 08/22/2002, judgment 05/20/2005).

Appeal from: District of Puerto Rico.

What happened: Unsuccessful appeal of a plea

of guilty of sexual exploitation of children.

Related case: United States v. Uribe-Londono (1st

Cir. 02–2028, filed 08/22/2002, judgment

09/10/2002) (duplicative criminal appeal voluntarily dismissed).
Citing Unpublished Opinions in Federal Appeals

137

Appellant’s brief: The defendant’s 1,776-word

appellant brief cites seven published opinions

(five by the U.S. Supreme Court and two by other

circuits).

Appellee’s brief: The government’s 4,976-word

appellee brief cites 17 published opinions (two by

the U.S. Supreme Court, 13 by the First Circuit,

and two by other circuits).

Appellant’s reply brief: The defendant’s 848-

word reply brief cites five published opinions

(four by the U.S. Supreme Court and one by another circuit).

Opinion: (3) The court’s published 1,955-word

per curiam opinion, United States v. Uribe-Londono,

409 F.3d 1 (1st Cir. 2005) (nine headnotes), cites

seven published opinions (two by the U.S. Supreme Court and five by the First Circuit). According to Westlaw (05/21/2005), the court’s

opinion has not been cited elsewhere.

Acosta-Perez v. Guillermo Rodriguez (1st Cir. 02–

2058, filed 08/26/2002, judgment 10/21/2002).

Appeal from: District of Puerto Rico.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s 33-word docket judgment cites no opinions.

United States v. Cameron (1st Cir. 02–2108, filed

09/03/2002, judgment 11/05/2002).

Appeal from: District of Maine.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s 26-word docket judgment cites no opinions.

United States v. Medina-Sanchez (1st Cir. 02–

2231, filed 09/26/2002, judgment 09/26/2002).

Appeal from: District of Puerto Rico.

What happened: Motion to stay a criminal trial

denied.

Opinion: (1) The court’s 26-word docket judgment cites one published opinion by another circuit.

Davis v. Commonwealth of Massachusetts (1st

Cir. 02–2242, filed 09/27/2002, judgment

03/24/2003).

Appeal from: District of Massachusetts.

What happened: Unsuccessful pro se appeal of

the dismissal of a federal challenge to a state probate court action. The court determined that there

was no federal jurisdiction over the claims.

Related cases: Davis v. Service Employees International Union (1st Cir. 96–1577, filed 06/07/1996,

judgment 10/23/1996) (unsuccessful pro se employment discrimination appeal), Davis v. Wonderland Greyhound Park, Inc. (1st Cir. 96–1604, filed

06/11/1996, judgment 08/27/1996) (unsuccessful

pro se employment discrimination appeal), Davis

v. Hanover Insurance Co. (1st Cir. 96–1650, filed

06/13/1996, judgment 10/11/1996) (unsuccessful

pro se civil appeal), Davis v. City of Malden (1st

Cir. 00–2519, filed 12/05/2000, judgment

06/15/2001) (unsuccessful pro se civil appeal).

Appellee’s brief: The commonwealth’s 2,281-

word appellee brief cites seven published opinions (three by the U.S. Supreme Court and four by

the First Circuit), an action in the District of Massachusetts by the appellant’s sister, and a Massachusetts state court action in which defense counsel was at attorney.

Opinion: (1) The court’s 370-word docket

judgment cites two published First Circuit opinions.

United States v. Castle (1st Cir. 02–2243, filed

10/03/2002, judgment 01/24/2003).

Appeal from: District of Massachusetts.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s 26-word docket judgment cites no opinions.

Lopes v. Metropolitan Life Insurance Co. (1st Cir.

02–2273, filed 10/04/2002, judgment 06/09/2003).

Appeal from: District of Massachusetts.

What happened: Unsuccessful appeal of summary judgment that an insurance company’s termination of the plaintiff’s long-term disability

benefits did not violate ERISA.

Appellant’s brief: The insured’s 4,376-word appellant brief cites eight published opinions (one

by the U.S. Supreme Court, two by the First Circuit, two by other circuits, and three by districts in

other circuits), one unpublished opinion by a district in another circuit, and one dictionary.

In a discussion of “the issue when the plan

administrator is also the issuing insurance company” (page 14), the brief quotes an unpublished

opinion by the Middle District of Pennsylvania.

The quotation begins, “A heightened arbitrary

and capricious standard will be applied because

there is a conflict of interest since the defendants

both issued the policy and administer claims

made thereunder.” (Page 15.)

Appellee’s brief: The insurance company’s 3,927-

word appellee brief cites 20 published opinions

(one by the U.S. Supreme Court, 12 by the First

Circuit, one by another circuit, four by the District

of Massachusetts, and two by other First Circuit

districts) and one unpublished opinion by the District of Massachusetts.
Citing Unpublished Opinions in Federal Appeals

138

The brief states, “This Court has not expressly

decided whether a reviewing court should consider evidence outside of the administrative claim

file. At times, however, this Court has indicated

that it is appropriate for a reviewing court to limit

its consideration to the information available to

the administrator.” (Page 7.) The brief cites five

district court opinions to support the statement,

“District courts in this circuit have expressly and

repeatedly held that such a limited review is appropriate, particularly when conducting a review

under an arbitrary and capricious standard.”

(Page 8.) One of these is an unpublished opinion

by the District of Massachusetts, three are published opinions by the District of Massachusetts,

and one is a published opinion by the District of

Maine.

Opinion: (3) The court’s published 2,662-word

signed opinion, Lopes v. Metropolitan Life Insurance

Co., 332 F.3d 1 (1st Cir. 2003) (three headnotes),

cites 11 published opinions (three by the U.S. Supreme Court, seven by the First Circuit, and one

by another circuit). According to Westlaw

(05/23/2005), the court’s opinion has been cited

in four First Circuit opinions (three published and

one unpublished), three published opinions by

the District of Massachusetts, three published

opinions by other districts in the First Circuit, two

published opinions by districts in other circuits,

six secondary sources, six appellate briefs in five

cases (three briefs in two cases in the First Circuit

and three briefs in three cases in other circuits),

and 34 trial court briefs in 25 cases (16 briefs in

nine cases in First Circuit districts and 18 briefs in

16 cases in other circuits).

Khalil v. Immigration and Naturalization Service

(1st Cir. 02–2344, filed 10/22/2002, judgment

07/24/2003).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful asylum appeal by

a Coptic Egyptian.

Related case: Khalil v. Ashcroft, 1st Cir. 03–1934,

filed 07/02/2003, judgment 06/03/2004) (unsuccessful immigration appeal).

Petitioner’s brief: The petitioner’s 4,988-word

brief cites 24 published court opinions (six by the

U.S. Supreme Court, six by the First Circuit, and

12 by other circuits), seven published decisions by

the Board of Immigration Appeals, and one

United Nations handbook.

Respondent’s brief: The government’s 4,994-

word respondent brief cites 22 published court

opinions (two by the U.S. Supreme Court, 11 by

the First Circuit, and nine by other circuits) and

one published decision by the Board of Immigration Appeals.

Opinion: (3) The court’s published 2,505-word

signed opinion, Khalil v. Ashcroft, 337 F.3d 50 (1st

Cir. 2003) (11 headnotes), cites 11 published opinions (one by the U.S. Supreme Court and 10 by the

First Circuit). According to Westlaw

(05/23/2005), the court’s opinion has been cited

in seven First Circuit opinions (four published

and three unpublished), two published opinions

by other circuits, five secondary sources, one petition for a writ of certiorari in the U.S. Supreme

Court, and 14 appellate briefs in 12 cases (four

briefs in four First Circuit cases and 10 briefs in

eight cases in another circuit).

United States v. Ferullo (1st Cir. 02–2369, filed

11/04/2002, judgment 10/14/2003).

Appeal from: District of Massachusetts.

What happened: Criminal sentence summarily

affirmed.

Related case: United States v. Maggio (1st Cir. 02–

2370, filed 11/04/2002, judgment 07/25/2003)

(codefendant’s criminal appeal voluntarily dismissed).

Appellant’s brief: The defendant’s 1,366-word

appellant brief cites six published opinions (three

by the First Circuit and three by other circuits).

Opinion: (1) The court’s 221-word docket judgment cites four published opinions (two by the

First Circuit and two by other circuits).

Campbell v. United States (1st Cir. 02–2387, filed

10/30/2002, judgment 08/25/2004).

Appeal from: District of Massachusetts.

What happened: Certificate of appealability denied.

Related cases: United States v. Campbell (1st Cir.

00–1647, filed 05/24/2000, judgment 08/21/2000)

(criminal appeal dismissed as untimely) and

United States v. Campbell (1st Cir. 00–2493, filed

12/04/2000, judgment 10/11/2001) (unsuccessful

criminal appeal).

Opinion: (2) The court’s unpublished 1,538-

word per curiam opinion, Campbell v. United

States, 108 Fed. Appx. 1, 2004 WL 1888604 (1st Cir.

2004) (five headnotes), cites 16 published opinions

(eight by the U.S. Supreme Court; seven by the

First Circuit, including the appellant’s unsuccessful appeal of his conviction; and one by another

circuit). According to Westlaw (05/23/2005), the

court’s opinion has been cited in two unpublished

opinions in another First Circuit district, one unpublished opinion by a district in another circuit,

and one secondary source.
Citing Unpublished Opinions in Federal Appeals

139

Smart v. Commissioner (1st Cir. 02–2413, filed

11/04/2002, judgment 04/19/2004).

Appeal from: District of New Hampshire.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 1,186-word docket

judgment cites seven published opinions (five by

the U.S. Supreme Court and two by the First Circuit).

In re Calore Express Co. (1st Cir. 02–2422, filed

11/08/2002, judgment 05/02/2003).

Appeal from: District of Massachusetts.

What happened: Bankruptcy appeal dismissed

as settled.

Related cases: United States v. Calore Express Co.

(1st Cir. 97–1482, filed 04/29/1997, judgment

03/30/2001) (bankruptcy appeal voluntarily dismissed) and In re Calore Express Co. (1st Cir. 01–

1464, filed 04/03/2001, judgment 05/02/2002)

(successful bankruptcy appeal by the government).

Opinion: (1) The court’s 33-word docket judgment cites no opinions.

United States v. Quiñones Rodríguez (1st Cir. 02–

2616, filed 12/19/2002, judgment 06/17/2003).

Appeal from: District of Puerto Rico.

What happened: Unsuccessful pro se appeal of

the district court’s refusal to modify a sentence for

carjacking.

Appellee’s brief: The government’s 3,416-word

appellee brief cites nine published opinions (three

by the First Circuit, including one affirming the

appellant’s 1994 conviction; five by other circuits;

and the opinion by the District of Puerto Rico explaining an upward departure in the appellant’s

sentence).

Opinion: (2) The court’s unpublished 270-word

per curiam opinion, United States v. QuiñonesRodríguez, 70 Fed. Appx. 591, 2003 WL 21699845

(1st Cir. 2003) (no headnotes), cites three published opinions (two by the First Circuit, including one affirming the appellant’s 1994 conviction,

and one by the District of Puerto Rico explaining

an upward departure in the appellant’s sentence)

and two unpublished opinions by another circuit.

In a footnote, the opinion distinguishes two

unpublished Eleventh Circuit cases, apparently

cited by the appellant in his pro se brief. (Page

two note 1, 70 Fed. Appx. at 591.)

According to Westlaw (05/23/2005), the

court’s opinion has not been cited elsewhere.

United States v. Castillo-Jimenez (1st Cir. 02–

2677, filed 12/20/2002, judgment 10/18/2004).

Appeal from: District of Puerto Rico.

What happened: Mostly unsuccessful criminal

appeal, but with a modified sentence concerning

drug testing during supervised release.

Appellant’s brief: The defendant’s 2,161-word

appellant brief cites 10 published opinions (one by

the First Circuit and nine by other circuits).

Appellee’s brief: The government’s 1,524-word

appellee brief cites seven published opinions (two

by the U.S. Supreme Court, four by the First Circuit, and one by another circuit).

Opinion: (1) The court’s 79-word docket judgment cites two published First Circuit opinions.

United States v. Ramos-Martinez (1st Cir. 02–

2712, filed 12/31/2002, judgment 09/25/2003).

Appeal from: District of Puerto Rico.

What happened: Criminal appeal dismissed for

failure to file a brief.

Related cases: The selected case was consolidated with codefendants’ appeals, United States v.

Datiz-Rodriguez (1st Cir. 02–2331, filed

10/28/2002, judgment 10/09/2004) (certain conditions of supervised release vacated), United

States v. Prieto-Sanchez (1st Cir. 02–2406, filed

11/05/2002, judgment 06/10/2003) (pro se motion to dismiss criminal appeal granted), United

States v. Santos-Baez (1st Cir. 02–2407, filed

11/05/2002, judgment 10/19/2004) (certain conditions of supervised release vacated), United

States v. Irizarry-Richard (1st Cir. 02–2453, filed

11/21/2002, judgment 11/23/2004) (unsuccessful

criminal appeal), United States v. Prieto-Agostini

(1st Cir. 02–2481, filed 11/21/2002, judgment

11/04/2004) (unsuccessful criminal appeal), and

United States v. Rodriguez-Valentin (1st Cir. 97–

2482, filed 11/29/2004, judgment 11/23/2004)

(unsuccessful criminal appeal).

Opinion: (1) The court’s 69-word docket judgment cites no opinions.

United States v. Cruz Franco (1st Cir. 02–2717,

filed 12/31/2002, judgment 05/06/2004).

Appeal from: District of Puerto Rico.

What happened: Criminal appeal remanded for

resentencing in light of new case law. The defendant’s court-appointed attorney filed an Anders

brief and a motion to withdraw as counsel. The

defendant filed a pro se response. While the Anders motion was pending, the court decided

United States v. Melendez-Santana, 353 F.3d 93 (1st

Cir. 2003). Counsel for both the defendant and the

government then argued that Melendez-Santana

invalidated the part of the sentence that delegated

discretion to a probation officer with respect to

drug testing required during supervised release.
Citing Unpublished Opinions in Federal Appeals

140

Related cases: Consolidated with United States v.

Cabrera Wilson (1st Cir. 02–2716, filed 12/31/2002,

judgment 07/08/2003) (criminal appeal voluntarily dismissed). A companion case is United States

v. Cruz Franco (1st Cir. 02–2718, filed 01/07/2003,

judgment 01/29/2003) (voluntarily dismissed as

duplicative of the selected case).

Anders brief: The appellant’s counsel’s 2,865-

word Anders brief cites 17 published opinions (six

by the U.S. Supreme Court and 11 by the First

Circuit).

Appellant’s brief: The 1,189-word brief by appellant’s counsel following the Melendez-Santana decision cites two published First Circuit opinions.

Appellee’s brief: The government’s 834-word

appellee brief cites five published opinions (one

by the U.S. Supreme Court and four by the First

Circuit).

Opinion: (1) The court’s 133-word docket

judgment cites one published First Circuit opinion.

2. Second Circuit

74

The Second Circuit does not permit citation

to its unpublished opinions in unrelated

cases.

75

Of the 50 cases randomly selected, 37 are

appeals from district courts (14 from the

 

74. Docket sheets are on PACER. Most opinions are

on the court’s website and on Westlaw. (Of the 15 cases

in this sample resolved by published opinions or unpublished summary orders, all but one published opinion and all unpublished summary orders are on the

court’s website, and all published opinions and all but

one unpublished summary order are on Westlaw.)

Briefs are on Westlaw for most cases with opinions on

Westlaw. (Of the 14 published opinions and unpublished summary orders in this sample on Westlaw, all

briefs are on Westlaw for five cases with published

opinions and six cases with unpublished summary orders.)

75. 2d Cir. L.R. § 0.23 (“Where disposition is by

summary order, the court may append a brief written

statement to that order. Since these statements do not

constitute formal opinions of the court and are unreported or not uniformly available to all parties, they

shall not be cited or otherwise used in unrelated cases

before this or any other court.”).

The court adopted its rule prohibiting citation to its

unpublished opinions in unrelated cases on October 31,

1973.

Eastern District of New York; 13 from the

Southern District of New York; three each

from the District of Connecticut, the Northern District of New York, and the Western

District of New York; and one from the District of Vermont), one is an appeal from the

United States Tax Court, and 12 are appeals

from the Board of Immigration Appeals.

76

The publication rate in this sample will

be from 16% to 18% once all the cases are resolved. Eight of the cases were resolved by

published opinions (six signed and two per

curiam), seven were resolved by unpublished

summary orders (five of which were published in the Federal Appendix), 34 were resolved by docket judgments, and one case

has not yet been resolved.

Published opinions averaged 6,004

words in length, ranging from 900 to 22,255.

Unpublished summary orders averaged 848

words in length, ranging from 315 to 1,728.

Six opinions were under 1,000 words in

length (40%, one published and five unpublished), and three of these were under 500

words in length (20%, all unpublished).

Fourteen of the cases were fully briefed.

In 33 of the appeals no counseled brief was

filed, and in three of the appeals a counseled

brief was filed only for one side.

77

There are citations to unpublished court

opinions in ten of these cases. In one case the

citation is only to an opinion in a related case;

in nine cases there are citations to unpublished opinions in unrelated cases. All of the

citations to unrelated unpublished opinions

are in briefs, not opinions.

Four of the unrelated unpublished opinions cited are by the court of appeals for the

Second Circuit, four are by courts of appeals

for other circuits, 12 are by Second Circuit

 

76. In 2002, 5,384 cases were filed in the court of appeals for the Second Circuit.

77. One fully briefed case was not included in the

attorney survey because the briefs were not filed until

after the June 2005 meeting of the Standing Committee.
Citing Unpublished Opinions in Federal Appeals

141

district courts, and four are by district courts

in other circuits.

C2–1. An unsuccessful criminal defendant, see United States v. Fricker (2d Cir. 02–

1038, filed 01/16/2002, judgment

09/06/2002), resolved by unpublished summary order, cited two unpublished opinions

by the court of appeals for the Second Circuit

in a discussion of whether a convicted defendant merits a two-level upward sentencing

adjustment if the defendant testifies at his

trial. The brief cites a U.S. Supreme Court

opinion to support an argument that an upward adjustment was not merited in this case

and then cites two unpublished and one published Second Circuit opinions to support a

statement that such upward adjustments

should be reserved for clear lies.

C2–2. Both the appellant and the appellee cited unpublished opinions in an unsuccessful appeal of the district court’s refusal to

set aside an arbitration decision concerning

the shipping of steel slabs, Duferco International Steel Trading v. T. Klaveness Shipping A/S

(2d Cir. 02–7238, filed 03/07/2002, judgment

06/24/2003), resolved by published opinion

at 333 F.3d 383.

The appellee cited an unpublished opinion by the court of appeals for the Second

Circuit with two published opinions by the

same court to support a statement that the

court reviews legal issues de novo and findings of fact for clear error in a review of a district court’s confirmation of an arbitration

award.

The appellee also cited three unpublished opinions by the district court for the

Southern District of New York. Its brief cites

two of these opinions in its discussion of the

standard of review of an arbitration award.

The brief cites the third unpublished Southern District of New York opinion as part of

quoted text from the published district court

opinion in this case.

The appellant quoted an unpublished

Southern District of New York opinion concerning the relationship between liability for

damages and selection of a port.

C2–3. The government cited an unpublished opinion by the court of appeals for the

Second Circuit in an immigration appeal that

is still open, Ni v. Ashcroft (2d Cir. 02–4903,

filed 12/09/2002, judgment pending). The

unpublished opinion is cited with a published opinion by the court of appeals for another circuit to support a statement that the

immigration judge did not err in finding that

the petitioner had submitted a frivolous asylum application.

C2–4. Both the school district and a parent cited unpublished opinions in a successful appeal by the school district of a determination that it failed to provide a disabled student with an adequate individualized education program, Grim v. Rhinebeck Central School

District (2d Cir. 02–7483, filed 04/30/2002,

judgment 10/08/2003), resolved by published opinion at 346 F.3d 377.

The school district’s appellant brief extensively cites unpublished opinions by the

courts of appeals for the Fourth and Tenth

Circuits. The brief also includes an unpublished opinion by the district court for the

Southern District of New York in a string citation including a U.S. Supreme Court opinion and three published opinions by courts of

appeals for the Sixth, Eighth, and Tenth Circuits.

The parent’s appellee brief cites an unpublished opinion by the district court for the

Northern District of Illinois to support a

statement recognizing deference to a school

district over educational policy.

C2–5. A fire department’s reply brief

cites two unpublished opinions in the department’s successful appeal of a judgment

against it concerning efforts to shut down

group housing for recovering alcoholics and

drug addicts, Tsombanidis v. City of West Haven (2d Cir. 02–7470, filed 04/29/2002, judgment 12/15/2003), resolved by published

opinion at Tsombanidis v. West Haven Fire De-
Citing Unpublished Opinions in Federal Appeals

142

partment, 352 F.3d 565 (2003). (The city’s consolidated appeal was unsuccessful.) The brief

includes 13 opinions in a nine-page string

citation to support a statement that mere enforcement of state law is not sufficient to establish liability where incorporation of state

law into local regulations might. One of these

opinions is an unpublished opinion by the

district court for the Northern District of Illinois, and the citation shows that it was affirmed by the court of appeals for the Seventh

Circuit. Another of these citations is a published opinion by the district court for the

Southern District of Ohio, and the citation

shows that it was affirmed in part and vacated in part by an unpublished opinion by

the court of appeals for the Sixth Circuit.

C2–6. Both the appellants and the appellees cited unpublished district court opinions

in a mostly unsuccessful appeal by nonsettling defendants of a partial settlement

agreement in a multidistrict investment fraud

case, Ellis v. Daiwa Securities America, Inc. (2d

Cir. 02–7084, filed 01/23/2002, judgment

05/15/2003), resolved by published opinion

at Gerber v. MTC Electronic Technologies Co.,

329 F.3d 297, cert denied, 540 U.S. 966 (2003).

The non-settling defendants and appellants cited unpublished opinions by the district courts for the Southern District of New

York and the Northern District of California.

Their brief includes the unpublished Southern District of New York opinion with a published Southern District of New York opinion

in a “see also” string citation following a twoand-a-half page argument that a plaintiff

cannot circumvent the Private Securities Litigation Reform Act over settlements by joining actions filed before its effective date. The

brief includes the unpublished Northern District of California opinion with two other district court opinions in a string citation supporting a statement concerning which claims

the Private Securities Litigation Reform Act

controls.

The plaintiffs and appellees cited one

unpublished opinion by the district court for

the Eastern District of New York and three

unpublished opinions by the district court for

the Southern District of New York. Their

brief includes the unpublished Eastern District of New York opinion in a string citation

with five published opinions (one by the

court of appeals for the Second Circuit, three

by other federal courts of appeals, and one by

a Second Circuit district court) to support an

argument that the one-satisfaction rule applies only where the settlement and judgment

represent common damages. The brief cites

one unpublished Southern District of New

York opinion as an example of a case that deferred judgment reduction until trial, another

unpublished Southern District of New York

opinion to argue that it was both wrongly

decided and distinguishable, and the third

unpublished Southern District of New York

opinion to rebut the appellants’ reliance on it.

The settling defendants and appellees

cited two unpublished opinions by the district court for the Southern District of New

York and one unpublished opinion each by

the district courts for the Eastern District of

Pennsylvania and the Northern District of

California. Their brief includes an unpublished Southern District of New York opinion

with a published opinion by another district

court as examples of courts barring nonsettling defendants from asserting claims in

an attempt to shift their liability to settling

defendants. The brief cites the other Southern

District of New York opinion only to argue

that the appellants’ citation to it is inapposite.

The brief cites the unpublished opinion by

the district court for the Eastern District of

Pennsylvania with a published opinion by

another district court to support a statement

that adding plaintiffs after the effective date

of the Private Securities Litigation Reform

Act does not alter the commencement date of

a pending action. And the brief cites the un-
Citing Unpublished Opinions in Federal Appeals

143

published Northern District of California

opinion to rebut the appellants’ reliance on it.

C2–7. In an unsuccessful asylum appeal,

Ni v. United States Department of Justice (2d

Cir. 02–4764, filed 11/18/2002, judgment

09/13/2005), the government cited two unpublished opinions—one by the court of appeals for the Ninth Circuit and one by the

district court for the Southern District of New

York. The Ninth Circuit citation notes that a

published Ninth Circuit opinion cited by the

petitioner has been superseded by regulations. The brief cites the Southern District of

New York opinion as in accord with a federal

regulation and a U.S. Supreme Court opinion

to support a statement that the court reviews

a refusal by the Board of Immigration Appeals to reopen or remand a case for abuse of

discretion.

C2–8. In an unsuccessful appeal of a

crack cocaine conviction, United States v. King

(2d Cir. 02–1460, filed 08/05/2002, judgment

09/17/2003), resolved by published opinion

at 345 F.3d 149, the defendant cited an unpublished opinion by the district court for the

Southern District of New York concerning

child pornography to support an argument

that he did not knowingly possess more than

five grams of cocaine unless he knew the

amount was more than five grams.

C2–9. In an unsuccessful appeal of a defendant’s bankruptcy relief by a successful

civil plaintiff, In re Dairy Mart Convenience

Stores, Inc. (2d Cir. 02–5010, filed 02/01/2002,

judgment 11/20/2003), resolved by published opinion at 351 F.3d 86, the standard of

review section of the defendants’ appellee

brief includes a short “see also” string citation,

which is headed by a published opinion by

the court of appeals for the Second Circuit,

and which then includes an unpublished

opinion by the district court for the Southern

District of New York, which in turn is cited as

citing another published opinion by the court

of appeals for the Second Circuit.

Individual Case Analyses

Varszegi v. Armstrong (2d Cir. 02–0107, filed

04/22/2002, judgment 09/03/2002).

Appeal from: District of Connecticut.

What happened: Pro se prisoner’s appeal withdrawn.

Related cases: Varszegi v. Meachum (2d Cir. 95–

2300, filed 05/22/1995, judgment 06/06/1995)

(pro se appeal dismissed for failure to pay fees),

Varszegi v. Meachum (2d Cir. 98–2577, filed

06/29/1998, judgment 03/18/1999) (pro se appeal

dismissed for failure to comply with the scheduling order), Varszegi v. United States (2d Cir. 98–

2654, filed 06/30/1998, judgment 07/24/1998)

(pro se appeal dismissed for lack of certificate of

appealability), Varszegi v. Stamford Police Department (2d Cir. 99–0035, filed 02/04/1999, judgment

08/25/1999) (unsuccessful pro se appeal),

Varszegi v. Delgado (2d Cir. 99–0130, filed

05/06/1999, judgment 03/06/2000) (unsuccessful

pro se appeal), Varszegi v. Bove (2d Cir. 99–0246,

filed 08/23/1999, judgment 01/07/2000) (pro se

appeal dismissed for failure to comply with the

scheduling order), Varszegi v. Armstrong (2d Cir.

02–2133, filed 03/01/2002, judgment 07/29/2002)

(certificate of appealability denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

Johnson v. Kellman (2d Cir. 02–0236, filed

08/20/2002, judgment 08/04/2003).

Appeal from: Eastern District of New York.

What happened: Pro se prisoner appeal of the

dismissal of the prisoner’s complaint dismissed

for failure to comply with the Prisoner Litigation

Reform Act.

Opinion: (1) The court’s docket judgment cites

no opinions.

Boddie v. Fisher (2d Cir. 02–0341, filed 11/22/2002,

judgment 03/06/2003).

Appeal from: Western District of New York.

What happened: Pro se prisoner appeal dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Gill v. United National (2d Cir. 02–0350, filed

12/04/2002, judgment 08/04/2003).

Appeal from: Southern District of New York.

What happened: Pro se prisoner appeal dismissed for failure to pay the filing fee or file a motion for in forma pauperis status. The court denied the appellant’s motion to reinstate the appeal

because the appeal lacked merit.
Citing Unpublished Opinions in Federal Appeals

144

Related case: Gill v. Bush (2d Cir. 02–9446, filed

12/04/2002, judgment 12/31/2002) (pro se appeal

dismissed for failure to pay the filing fee).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Fricker (2d Cir. 02–1038, filed

01/16/2002, judgment 09/06/2002).

Appeal from: Southern District of New York.

What happened: Unsuccessful appeal of a conviction for insider trading.

Appellant’s brief: The defendant’s 12,835-word

appellant brief cites 18 published opinions (two

by the U.S. Supreme Court, 13 by the Second Circuit, one by another circuit, one by the Southern

District of New York, and one by a district in another circuit), two unpublished Second Circuit

opinions, evidence admitted in two related criminal prosecutions in the Southern District of New

York, and one Web article.

The brief cites two unpublished Second Circuit

opinions in a discussion of the argument that a

two-level sentencing “upward adjustment is not

intended to be automatically applied whenever a

defendant testifies at his trial and is nonetheless

convicted.” (Page 36.) The brief cites a U.S. Supreme Court opinion to support the argument

and then cites two unpublished and one published Second Circuit opinions to support the

statement: “Moreover, a review of the cases decided by this Court indicates that this upward

adjustment has been reserved for situations where

the defendant ‘has clearly lied’ with regard to material matters . . . .” (Page 37.)

Appellee’s brief: The government’s 9,771-word

appellee brief cites 38 published opinions (three

by the U.S. Supreme Court, 32 by the Second Circuit, one by the Southern District of New York,

one by another Second Circuit district, and one by

a district in another circuit).

Opinion: (2) The court’s unpublished 1,467-

word summary order cites eight published opinions (two by the U.S. Supreme Court and six by

the Second Circuit). The order is on the court’s

website, but not on Westlaw.

United States v. Saltzman (2d Cir. 02–1058, filed

01/25/2002, judgment 02/13/2002).

Appeal from: Eastern District of New York.

What happened: Criminal appeal voluntarily

withdrawn with prejudice.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Stakes (2d Cir. 02–1146, filed

02/27/2002, judgment 01/17/2003).

Appeal from: Eastern District of New York.

What happened: Partially successful criminal

appeal in which the court remanded the case for

consideration of mandatory factors in the restitution component of the sentence.

Appellant’s brief: The defendant’s 4,124-word

appellant brief cites 12 published opinions (11 by

the Second Circuit and one by another circuit).

Appellee’s brief: The government’s 2,776-word

appellee brief cites four published Second Circuit

opinions.

Appellant’s reply brief: The defendant’s 1,092-

word reply brief cites two published Second Circuit opinions.

Opinion: (2) The court’s unpublished 786-word

summary order, United States v. Stakes, 58 Fed.

Appx. 531, 2003 WL 151260 (2d Cir. 2003) (two

headnotes), cites four published Second Circuit

opinions. According to Westlaw (04/05/2005), the

court’s summary order has not been cited elsewhere.

United States v. Kishk (2d Cir. 02–1157, filed

03/06/2002, judgment 04/11/2003).

Appeal from: Eastern District of New York.

What happened: Unsuccessful appeal of a conviction for making a false statement.

Appellant’s brief: The defendant’s 4,746-word

appellant brief cites 13 published opinions (four

by the U.S. Supreme Court, four by the Second

Circuit, four by other circuits, and one by the

Eastern District of New York).

Appellee’s brief: The government’s 6,017-word

appellee brief cites 32 published opinions (three

by the U.S. Supreme Court, 22 by the Second Circuit, six by other circuits, and one by a district in

another circuit).

Opinion: (2) The court’s unpublished 800-word

summary order, United States v. Kishk, 63 Fed.

Appx. 11, 2003 WL 1868479 (2d Cir. 2003) (three

headnotes), cites seven published opinions (two

by the U.S. Supreme Court, four by the Second

Circuit, and one by another circuit). According to

Westlaw (04/05/2005), the court’s summary order

has been cited in three secondary sources and two

briefs in one Southern District of New York case.

United States v. King (2d Cir. 02–1460, filed

08/05/2002, judgment 09/17/2003).

Appeal from: Eastern District of New York.

What happened: Unsuccessful appeal of a crack

cocaine conviction. The court held that the defendant could be convicted of possessing more than

five grams of cocaine even if the government had

not proved he knew he possessed more than five

grams of cocaine, so long as the government
Citing Unpublished Opinions in Federal Appeals

145

proved that he knew he possessed cocaine and it

was more than five grams in quantity.

Appellant’s brief: The defendant’s 7,032-word

appellant brief cites 30 published opinions (15 by

the U.S. Supreme Court, six by the Second Circuit,

seven by other circuits, and two by New York’s

court of appeals) and one unpublished opinion by

a Second Circuit district.

The brief cites the unpublished opinion by the

Southern District of New York as “interpreting

‘knowingly’ . . . to require the defendant’s knowledge that depictions were of actual minors, and

not ‘virtual child pornography.’” (Page 20.)

Appellee’s brief: The government’s 4,822-word

appellee brief cites 27 published opinions (nine by

the U.S. Supreme Court, nine by the Second Circuit, and nine by other circuits).

Opinion: (3) The court’s published 1,927-word

per curiam opinion, United States v. King, 345 F.3d

149 (2d Cir. 2003) (five headnotes), cites 17 published opinions (six by the U.S. Supreme Court,

four by the Second Circuit, and seven by other

circuits). According to Westlaw (09/22/2004), the

court’s opinion has been cited in two published

Second Circuit opinions, two unpublished Second

Circuit opinions, one published opinion by another circuit, one unpublished opinion by another

circuit’s district, one secondary source, one appellate brief in a Second Circuit case, and one appellate brief in an Eighth Circuit case.

Livingston v. Herbert (2d Cir. 02–2083, filed

02/04/2002, judgment 08/28/2002).

Appeal from: Northern District of New York.

What happened: Pro se petition for certificate of

appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Fernandez v. United States (2d Cir. 02–2129, filed

03/04/2002, judgment 04/24/2002).

Appeal from: Southern District of New York.

What happened: Pro se petition for certificate of

appealability denied.

Related case: Fernandez v. United States (2d Cir.

02–3533, filed 03/04/2002, judgment 04/24/2002)

(pro se motion to file successive habeas corpus

petition denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

Samuel v. Stinson (2d Cir. 02–2145, filed

03/06/2002, judgment 07/23/2002).

Appeal from: Eastern District of New York.

What happened: Pro se prisoner’s certificate of

appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Winfield v. Herbert (2d Cir. 02–2199, filed

03/27/2002, judgment 08/08/2002).

Appeal from: Eastern District of New York.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Brown v. Burge (2d Cir. 02–2345, filed 06/05/2002,

judgment 06/14/2002).

Appeal from: Western District of New York.

What happened: Pro se prisoner appeal dismissed for failure to seek a certificate of appealability from the district court.

Related case: Brown v. Burge (2d Cir. 02–3576,

filed 05/23/2002, judgment 07/15/2002) (motion

to file a successive habeas corpus petition denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

Simon v. Miller (2d Cir. 02–2472, filed 07/29/2002,

judgment 12/27/2002).

Appeal from: Southern District of New York.

What happened: Pro se prisoner’s certificate of

appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Fashewe v. United States (2d Cir. 02–2528, filed

08/23/2002, judgment 02/13/2003).

Appeal from: Eastern District of New York.

What happened: Pro se petition for certificate of

appealability denied.

Related cases: United States v. Fashewe (2d Cir.

97–1257, filed 04/29/1997, judgment 05/08/1998)

(unsuccessful criminal appeal), Fashewe v. United

States (2d Cir. 01–3058, filed 07/30/2001, judgment 08/24/2001) (pro se petition for writ of

mandamus instructing district court to rule on

habeas corpus motion denied without prejudice to

refiling if the district court does not rule).

Opinion: (1) The court’s docket judgment cites

no opinions.

Beatty v. United States (2d Cir. 02–3535, filed

03/08/2002, judgment 04/10/2002).

Appeal from: Southern District of New York.

What happened: Pro se successive application

for habeas corpus relief transferred from the district court and then withdrawn by the petitioner.

Related cases: In re Beatty (2d Cir. 96–3110, filed

10/15/1996, judgment 12/03/1996) (pro se petition for writ of mandamus denied), United States

v. Beatty (2d Cir. 98–1460, filed 08/07/1998, judg-
Citing Unpublished Opinions in Federal Appeals

146

ment 10/01/1999) (unsuccessful criminal appeal),

United States v. Smith (2d Cir. 99–1079, filed

02/11/1999, judgment 12/29/1999) (same), United

States v. Smith (2d Cir. 99–1080, filed 02/11/1999,

judgment 12/29/1999) (same), Beatty v. United

States (2d Cir. 01–2493, filed 08/08/2001, judgment 05/24/2002) (unsuccessful appeal of a district court refusal to reconsider a criminal sentence).

Opinion: (1) The court’s docket judgment cites

no opinions.

Brown v. Burge (2d Cir. 02–3576, filed 05/23/2002,

judgment 07/15/2002).

Appeal from: Western District of New York.

What happened: Application to file a successive

habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Rodriguez-Taveras v. Ashcroft (2d Cir. 02–4039,

filed 02/11/2002, judgment 09/15/2003).

Appeal from: Board of Immigration Appeals.

What happened: Appeal withdrawn by consent.

Opinion: (1) The court’s docket judgment cites

no opinions.

Thornton v. Commissioner of Internal Revenue

(2d Cir. 02–4051, filed 02/14/2002, judgment

10/22/2003).

Appeal from: United States Tax Court.

What happened: Unsuccessful pro se appeal of a

petition to review a tax deficiency filed seven

days too late.

Appellee’s brief: The government’s 2,296-word

appellee brief cites 21 published opinions (three

by the U.S. Supreme Court, six by the Second Circuit, and 12 by other circuits).

Opinion: (2) The court’s unpublished 390-word

summary order, Thornton v. Commissioner of Internal Revenue, 78 Fed. Appx. 747, 2003 WL 22426967

(2d Cir. 2003) (one headnote), cites two published

opinions (one by the U.S. Supreme Court and one

by the Second Circuit). According to Westlaw

(04/05/2005), the court’s order has been cited in

two secondary sources.

Doukoure v. Immigration and Naturalization

Service (2d Cir. 02–4122, filed 04/16/2002,

judgment 09/08/2004).

Appeal from: Board of Immigration Appeals.

What happened: Appeal of the denial of asylum

by an immigrant from Mauritania withdrawn.

Petitioner’s brief: The petitioner’s 2,888-word

brief cites two published court opinions (one by

the U.S. Supreme Court and one by a circuit other

than the Second) and four published opinions by

the Board of Immigration Appeals.

Opinion: (1) The court’s docket judgment cites

no opinions.

Krayevsky v. Immigration and Naturalization

Service (2d Cir. 02–4287, filed 07/12/2002,

judgment 05/27/2004).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal withdrawn.

Opinion: (1) The court’s docket judgment cites

no opinions.

Lin v. Immigration and Naturalization Service

(2d Cir. 02–4454, filed 09/05/2002, judgment

08/02/2004).

Appeal from: Board of Immigration Appeals.

What happened: Deportation appeal withdrawn

by stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

Ilichev v. Immigration and Naturalization

Service (2d Cir. 02–4538, filed 09/27/2002,

judgment 03/17/2005).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal withdrawn

on a stipulation to reconsider the petitioner’s application for asylum.

Opinion: (1) The court’s docket judgment cites

no opinions.

Zhang v. Immigration and Naturalization Service

(2d Cir. 02–4540, filed 09/27/2002, judgment

06/10/2004).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal withdrawn.

Opinion: (1) The court’s docket judgment cites

no opinions.

Zheng v. Department of Justice (2d Cir. 02–4739,

filed 11/12/2002, judgment 05/12/2004).

Appeal from: Board of Immigration Appeals.

What happened: Petition for review of a decision

by the Board of Immigration Appeals withdrawn

by stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

Ni v. United States Department of Justice (2d Cir.

02–4764, filed 11/18/2002, judgment 09/13/2005).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful appeal of the denial of asylum by a Chinese citizen, because, in

part, his claims that his wife was sterilized after

having a second child contradicted his wife’s
Citing Unpublished Opinions in Federal Appeals

147

statement that she fled China to avoid sterilization.

Petitioner’s brief: The petitioner’s 12,657-word

brief cites 53 published court opinions (11 by the

U.S. Supreme Court, 18 by the Second Circuit, 22

by other circuits, and two by districts in other circuits), 10 published decisions by the Board of

Immigration Appeals, a United Nations immigration handbook, and two media articles included in

the joint appendix and cited in the brief by title.

Respondent’s brief: The government’s 14,769-

word respondent brief cites 45 published court

opinions (seven by the U.S. Supreme Court, 25 by

the Second Circuit, 11 by other circuits, one by a

Second Circuit district, and one by Britain’s privy

council), six published decisions of the Board of

Immigration Appeals, and two unpublished court

opinions (one by another circuit and one by a Second Circuit district).

To support the statement that “[t]his Court reviews the BIA’s refusal to reopen or remand a

case under an abuse of discretion standard,” the

government’s brief cites a federal regulation and a

U.S. Supreme Court opinion. The brief cites an

unpublished opinion by the Southern District of

New York as in “accord.” (Page 50.)

The brief also cites an unpublished opinion by

the Ninth Circuit as noting that a published Ninth

Circuit opinion cited by the petitioner has been

superseded by regulations. (Page 57.)

Opinion: (3) The court’s published 900-word

per curiam opinion, Ni v. United States Department

of Justice, 424 F.3d 172 (2d Cir. 2005) (six headnotes), cites eight published opinions (one by the

U.S. Supreme Court and seven by the Second Circuit). According to Westlaw (09/19/2005), the

court’s opinion has not been cited elsewhere.

Zhang v. United States Department of Justice (2d

Cir. 02–4813, filed 11/25/2002, judgment

07/12/2005).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

as settled.

Opinion: (1) The court’s docket judgment cites

no opinions.

Jiang v. Immigration and Naturalization Service

(2d Cir. 02–4818, filed 11/25/2002, judgment

04/11/2003).

Appeal from: Board of Immigration Appeals.

What happened: Pro se petition to review a decision by the Immigration and Naturalization Service dismissed as untimely.

Opinion: (1) The court’s docket judgment cites

no opinions.

Bogonis v. Attorney General (2d Cir. 02–4861,

filed 12/03/2002, judgment 08/31/2005).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal.

Petitioner’s brief: The petitioner’s 2,753-word

brief cites six published court opinions (one by the

U.S. Supreme Court, three by the Second Circuit,

and two by another circuit) and two published

opinions by the Board of Immigration Appeals.

Respondent’s brief: The government’s 8,100-

word respondent brief cites 52 published court

opinions (four by the U.S. Supreme Court, 19 by

the Second Circuit, and 29 by other circuits) and

three published decisions by the Board of Immigration Appeals.

Petitioner’s reply brief: The petitioner’s 188-

word reply brief cites one published opinion by

another circuit.

Opinion: (2) The court’s unpublished 315-word

summary order, Bogonis v. United States Immigration and Naturalization Service, 147 Fed. Appx. 216,

2005 WL 2108099 (2d Cir. 2005) (one headnote),

cites one published Second Circuit opinion. According to Westlaw (09/06/2005), the court’s

summary order has not been cited elsewhere.

Ni v. Ashcroft (2d Cir. 02–4903, filed 12/09/2002,

judgment pending). 78

Appeal from: Board of Immigration Appeals.

What happened: Still-open immigration appeal

by a Chinese woman challenging a finding that

her asylum application was frivolous.

Petitioner’s brief: The petitioner’s 2,916-word

brief cites eight published court opinions (seven

by circuits other than the Second Circuit and one

by a Second Circuit district) and four published

opinions by the Board of Immigration Appeals.

Respondent’s brief: The government’s 2,349-

word respondent brief cites 11 published opinions

(three by the U.S. Supreme Court, seven by the

Second Circuit, and one by another circuit) and

one unpublished opinion by the Second Circuit.

The unpublished opinion is cited with a published opinion by the Eleventh Circuit in a string

citation headed by “see,” to support a statement

that the immigration judge “did not err in finding

that the petitioner had submitted a frivolous asylum application and the decision below should be

affirmed.” (Page 13.)

Opinion: (0) The appeal is still open.

 78. Although this case was fully briefed, the authors

of the briefs were not included in the attorney survey,

because the briefs were not filed until June and September of 2005.
Citing Unpublished Opinions in Federal Appeals

148

In re Dairy Mart Convenience Stores, Inc. (2d Cir.

02–5010, filed 02/01/2002, judgment 11/20/2003).

Appeal from: Southern District of New York.

What happened: Unsuccessful appeal denying

relief to a successful civil plaintiff from a defendant in bankruptcy.

Appellant’s brief: The plaintiff’s 7,631-word appellant brief cites nine published opinions (two by

the Second Circuit, two by other circuits, two by

the Southern District of New York’s bankruptcy

court, one by another Second Circuit district, one

by another Second Circuit district’s bankruptcy

court, and one by Connecticut’s appellate court)

and one treatise.

Appellee’s brief: The defendants’ 7,725-word

appellee brief cites 22 published opinions (two by

the U.S. Supreme Court, four by the Second Circuit, one by the Second Circuit’s bankruptcy appellate panel, four by other circuits, one by the

Southern District of New York, five by the Southern District of New York’s bankruptcy court, four

by other Second Circuit districts’ bankruptcy

courts, and one by a bankruptcy court in another

circuit), one unpublished opinion by the Southern

District of New York, and one treatise.

The brief cites the unpublished Southern District of New York opinion in its “Standard of Review” section in a short string citation headed by

“see also.” The string begins with a published Second Circuit opinion and then includes the unpublished district court opinion, which is quoted as

saying, “We may overturn a denial of a motion to

lift the automatic stay only upon a showing of

abuse of discretion,” and cited as citing another

published Second Circuit opinion. (Page 3.)

Appellee’s brief: The unsecured creditors’ 5,146-

word appellee brief cites 23 published opinions

(two by the U.S. Supreme Court, nine by the Second Circuit, three by other circuits, one by another circuit’s bankruptcy appellate panel, four by

the Southern District of New York, one by the

Southern District of New York’s bankruptcy

court, one by another Second Circuit’s bankruptcy

court, one by a district in another circuit, and one

by a bankruptcy court in another circuit) and one

treatise.

Opinion: (3) The court’s published 2,620-word

signed opinion, In re Dairy Mart Convenience

Stores, Inc., 351 F.3d 86 (2d Cir. 2003) (12 headnotes), cites 11 published opinions (two by the

U.S. Supreme Court; two by the Second Circuit;

two by other circuits; two by the Southern District

of New York, including one in an earlier phase of

this case; two by the Southern District of New

York’s bankruptcy court; and one by another Second Circuit district), an unpublished opinion by a

Second Circuit district in an earlier phase of this

case, and one treatise. According to Westlaw

(04/05/2005), the court’s opinion has been cited

in one published Second Circuit opinion, three

unpublished opinions by the Southern District of

New York, two published opinions by the Southern District of New York’s bankruptcy court, 19

secondary sources, one appellate brief in another

circuit, and nine trial court briefs in nine cases

(three bankruptcy court cases in the Southern District of New York, two district court cases in other

circuits, and four bankruptcy court cases in other

circuits).

Huminski v. Predom (2d Cir. 02–6199, filed

08/12/2002, judgment 10/07/2004).

Appeal from: District of Vermont.

What happened: Partially successful crossappeal by a director of courthouse security of a

denial of qualified immunity in an action alleging

that she and state court judges violated the plaintiff’s First Amendment rights in barring him from

courthouse grounds in reaction to his ambiguous

threats. The court of appeals held that the plaintiff

had a First Amendment right to attend court proceedings, but that right was not yet well established at the time of the defendants’ actions, so the

security director had qualified immunity from an

action based on that right. But the plaintiff also

had a First Amendment right to display messages

on his van and park it in the court’s parking lot,

and this right was well established, so the security

director did not have qualified immunity from a

claim arising from that right.

The court denied the security director’s petition for rehearing, but granted the plaintiff’s motion for clarification or rehearing.

Related cases: The appeal was consolidated with

a successful cross-appeal by the judges, Huminski

v. Rutland County (2d Cir. 02–6150, filed

08/12/2002, judgment 10/07/2004) (the judges

had judicial immunity), and partially successful

appeals by the plaintiff, Huminski v. Corsones (2d

Cir. 02–6201, filed 08/12/2002, judgment

10/07/2004) (the plaintiff’s appeal, regarded as

the lead case) and Huminski v. Rutland County (2d

Cir. 03–6059, filed 01/16/2003, judgment

10/07/2004) (the plaintiff’s certified interlocutory

appeal).

Cross-appellee’s brief: The plaintiff’s 14,596-

word appellant brief cites 82 published opinions

(36 by the U.S. Supreme Court; 26 by the Second

Circuit, including one by a previous appeal in this

case; 14 by other circuits; three by the District of

Vermont in this case; one by another Second Cir-
Citing Unpublished Opinions in Federal Appeals

149

cuit district; one by a district in another circuit;

and one by Vermont’s supreme court), two unpublished opinions in related cases (one in Vermont’s supreme court and one in Vermont’s district court), one newspaper article, and one website.

Amicus curiae brief: The Thomas Jefferson Center for the Protection of Free Expression’s 2,189-

word amicus curiae brief cites 12 published opinions (four by the U.S. Supreme Court; five by the

Second Circuit, including one by a previous appeal in this case; one by another circuit; and two

by the District of Vermont in this case).

Cross-appellant’s brief: The security director’s

6,677-word cross-appellant and appellee brief

cites 33 published opinions (15 by the U.S. Supreme Court, nine by the Second Circuit, six by

other circuits, one by the District of Vermont in

this case, one by a district in another circuit, and

one by the District of Columbia’s court of appeals).

Cross-appellee’s reply brief: The plaintiff’s 19,696-

word reply brief cites 99 published opinions (45

by the U.S. Supreme Court, 22 by the Second Circuit, 20 by other circuits, three by the District of

Vermont in this case, four by other Second Circuit

districts, and five by districts in other circuits),

one law review article, two newspaper articles,

and Black’s Law Dictionary.

Cross-appellant’s reply brief: The security director’s 4,641-word reply brief cites 18 published

opinions (five by the U.S. Supreme Court, 11 by

the Second Circuit, and two by other circuits).

Opinion: (3) The court published a 22,204-word

signed opinion, Huminski v. Corsones, 386 F.3d 116

(2d Cir. 2004) (32 headnotes), citing 88 published

opinions (37 by the U.S. Supreme Court; 32 by the

Second Circuit, including a previous interlocutory

appeal; 12 by other circuits; three by the District of

Vermont in earlier phases of this case; and four by

Vermont’s supreme court), five unpublished opinions in related cases (one by the Second Circuit,

two by the District of Vermont, and two by Vermont’s district court), and two legal articles.

According to Westlaw (04/06/2005), the court’s

opinion has been cited in three Second Circuit

opinions (one published and two unpublished),

one published opinion by another circuit, one secondary source, and one appellate brief in another

circuit.

On rehearing, the court published a 22,255-

word signed opinion, Huminski v. Corsones, 396

F.3d 53, 2005 WL 94542 (2d Cir. 2005) (32 headnotes), citing the same sources as the original

opinion did. According to Westlaw (04/05/2005),

the court’s opinion on rehearing has been cited in

one published opinion by a Second Circuit district.

Commodity Futures Trading Commission v.

Martin A. Armstrong, SA (2d Cir. 02–6263, filed

10/21/2002, judgment 02/28/2003).

Appeal from: Southern District of New York.

What happened: Pro se appeal dismissed.

Related cases: Commodity Futures Trading Commission v. Martin A. Armstrong, SA (2d Cir. 02–

6262, filed 10/21/2002, judgment 02/28/2003)

(pro se appeal dismissed), Commodity Futures

Trading Commission v. Martin A. Armstrong, SA (2d

Cir. 02–6264, filed 10/21/2002, judgment

02/28/2003) (pro se appeal dismissed).

Opinion: (1) The court’s docket judgment cites

no opinions.

Sager Spuck Statewide v. Hartford Casualty (2d

Cir. 02–7072, filed 01/18/2002, judgment

04/23/2002).

Appeal from: Northern District of New York.

What happened: Civil appeal withdrawn by

stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

Ellis v. Daiwa Securities America, Inc. (2d Cir.

02–7084, filed 01/23/2002, judgment 05/15/2003).

Appeal from: Eastern District of New York.

What happened: Mostly unsuccessful appeal by

non-settling defendants of a partial settlement

agreement in a multidistrict investment fraud

case.

Related cases: The lead case is Kayne v. MTC

Electronic Technologies Co. (2d Cir. 02–7023, filed

01/08/2002, judgment 05/15/2003). Other appeals decided with the selected case are Gerber v.

Daiwa Securities America, Inc. (2d Cir. 02–7083,

filed 01/23/2002, judgment 05/15/2003), Farr v.

Driol (2d Cir. 02–7143, filed 02/13/2002, judgment

05/15/2003), and Kayne v. MTC Electronic Technologies Co. (2d Cir. 02–7215, filed 02/12/2002,

judgment 05/15/2003). A companion case, Gerber

v. BDO Dunwoody Ward Mallette (2d Cir. 02–7026,

filed 01/08/2002, judgment 05/16/2003), was

withdrawn by stipulation. Another case, Farr v.

Driol (2d Cir. 02–7147, filed 02/13/2002, judgment

05/22/2002), was dismissed for failure to file

Forms C and D.

Appellant’s brief: The non-settling defendants’

8,836-word appellant brief cites 22 published

opinions (four by the U.S. Supreme Court, four by

the Second Circuit, three by other circuits, one by

the Eastern District of New York in a related case,

four by another Second Circuit district, and six by
Citing Unpublished Opinions in Federal Appeals

150

districts in other circuits), two unpublished opinions (one by a Second Circuit district and one by a

district in another circuit), and four related cases

(two in federal district courts and two in a California superior court).

The brief devotes two-and-a-half pages to an

argument that a plaintiff cannot circumvent control of the Private Securities Litigation Reform Act

over settlements by joining actions filed before

December 22, 1995. (Pages 31–33.) The brief cites

two opinions by the Southern District of New

York in a “see also” string. One of these opinions is

published, but the first cited is unpublished, Levy

v. United States General Accounting Office, 1998 WL

193191. Its citation shows that it was affirmed by a

published Second Circuit opinion.

The brief cites three district court opinions to

support the statement, “Courts have interpreted

section 108 [of the Private Securities Litigation

Reform Act] to require application of the [Act] to

all [Securities Exchange Act of 1934] claims asserted after [December 22, 1995].” (Page 30.) Two

of these opinions are published and one is an unpublished opinion by the Northern District of

California, Hockey v. Medhekar, 1997 WL 203704.

Appellee’s brief: The plaintiffs’ 6,908-word appellee brief cites 41 published opinions (six by the

U.S. Supreme Court; nine by the Second Circuit;

14 by other circuits; two by the Eastern District of

New York, including one in a related case; nine by

other Second Circuit districts; and one by a district in another circuit) and four unpublished

opinions (one by the Eastern District of New York

and three by other Second Circuit districts).

The brief cites a published Second Circuit

opinion to support the statement that “The ‘one

satisfaction’ rule applies only where ‘the settlement and judgment represent common damages.’” (Page 14.) An 18-line string citation follows, including citations to six opinions—one

published Second Circuit opinion, three published

opinions by other circuits, one published opinion

by a Second Circuit district, and one unpublished

opinion by the Eastern District of New York—

each accompanied by a parenthetical elaboration.

The brief cites an unpublished opinion by the

Southern District of New York as an example of

“pre-PSLRA authority in this Circuit subsequent

to [In re] Jiffy Lube [Securities Litigation, 927 F.2d

155 (4th Cir. 1991),] that allowed deferral of even

the judgment reduction methodology until the

time of trial, even where the non-settling defendants’ contribution claims were barred.” (Pages

18–19.)

The brief cites a published opinion by the

Southern District of New York for the principle

that “American Pipe tolling applie[s] even to individual claims filed prior to a class certification

ruling.” (Page 27, citing American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974).) The brief devotes nearly a page to an argument that: “The

contrary holding in [an unpublished opinion by

the Southern District of New York] is both

wrongly decided and distinguishable.” (Page 28.)

The brief also cites an unpublished opinion by

the Southern District of New York, Levy v. United

States General Accounting Office, 1998 WL 193191,

which was affirmed in a published Second Circuit

opinion, in order to rebut the appellants’ reliance

on the opinion: “Non-settling Defendants cite a

number of ‘relation-back’ statute of limitations

cases decided under FRCP 15(c) ([citations]) to

argue that the PSLRA applies to the later-added

plaintiffs. This analysis is faulty for several reasons.” (Page 24.)

Appellee’s brief: The settling defendant’s 7,146-

word brief cites 29 published opinions (one by the

U.S. Supreme Court, three by the Second Circuit,

10 by other circuits, three by a Second Circuit district, 11 by districts in other circuits, and one by

California’s court of appeal), four unpublished

opinions (two by a Second Circuit district and two

by districts in other circuits), and two related district court cases.

The brief includes an unpublished opinion by

the Southern District of New York in a string citation with a published opinion by a district in another circuit to support the statement, “Federal

courts recognize that ‘a rose by any other name is

still a rose’ and do not hesitate to bar non-settling

defendants from asserting tort and contract claims

that are, in effect, attempts to shift their liability to

settling defendants.” (Page 20.)

The brief cites a published opinion by the District of Maryland and an unpublished opinion by

the Eastern District of Pennsylvania in a string

headed by “see” to support the statement, “The

addition of new plaintiffs through amended complaints filed in 1996 and 1997 does not alter the

fundamental fact that this action was ‘commenced’ before the PSLRA’s effective date.” (Page

13.)

In one footnote, the brief asserts that a published opinion by the Eastern District of Michigan

and an unpublished opinion by the Northern District of California do not support the appellants’

argument that “courts have applied the PSLRA

not only to actions commenced after the enactment date, but to ‘claims asserted’ after that date
Citing Unpublished Opinions in Federal Appeals

151

as well.” (Page 13, note 7, citing Hockey v. Medhekar, 1997 WL 203704.) In another footnote, the

brief asserts that two opinions by the Southern

District of New York cited by the appellants, one

published and one unpublished, “are inapposite.”

(Page 17, note 10, citing Levy v. United States General Accounting Office, 1998 WL 193191.)

Opinion: (3) The court’s published 6,367-word

signed opinion, Gerber v. MTC Electronic Technologies Co., 329 F.3d 297 (2d Cir. 2003)

79 (nine headnotes), cites 10 published opinions (four by the

Second Circuit, three by other circuits, two by

Second Circuit districts, and one by a district in

another circuit). According to Westlaw

(04/06/2005), the court’s opinion has been cited

in one published opinion by another circuit, seven

opinions by Second Circuit districts (three published and four unpublished), four opinions by

districts in other circuits (three published and one

unpublished), 10 secondary sources, one petition

to the U.S. Supreme Court for a writ of certiorari,

six appellate briefs in four appeals in other circuits, and 14 trial court briefs in eight cases (seven

briefs in two cases in a Second Circuit district,

four briefs in four district court cases in other circuits, and two in bankruptcy court cases in other

circuits).

Fernicola v. Healthcare Underwriters Mutual

Insurance Co. (2d Cir. 02–7151, filed 02/07/2002,

judgment 11/18/2002).

Appeal from: Southern District of New York.

What happened: Pro se real property civil appeal

dismissed because plaintiffs and appellants filed

to file their brief.

Related cases: In re Fernicola (2d Cir. 01–3001,

filed 01/08/2001, judgment 03/02/2001) (pro se

petition for writ of mandamus denied), In re Fernicola (2d Cir. 02–3002, filed 01/02/2002, judgment

02/22/2002) (same).

Opinion: (1) The court’s docket judgment cites

no opinions.

Charter Oak Insurance Co. v. Trio Realty Co. (2d

Cir. 02–7185, filed 02/20/2002, judgment

02/24/2004).

Appeal from: Southern District of New York.

What happened: Civil appeal withdrawn.

Opinion: (1) The court’s docket judgment cites

no opinions.

 79. Cert. denied, 540 U.S. 966 (2003).

Duferco International Steel Trading v. T.

Klaveness Shipping A/S (2d Cir. 02–7238, filed

03/07/2002, judgment 06/24/2003).

Appeal from: Southern District of New York.

What happened: Unsuccessful appeal of the district court’s refusal to set aside an arbitration decision concerning the shipping of steel slabs.

Appellant’s brief: The appellant’s 8,643-word

brief cites 22 published opinions (two by the U.S.

Supreme Court, 14 by the Second Circuit, two by

other circuits, two by the Southern District of

New York, one by another Second Circuit district,

and one by the court of appeal for England and

Wales), one unpublished opinion by the Southern

District of New York, two treatises, and two law

review articles.

The unpublished opinion is quoted in a footnote: “It is well settled that ‘[w]hen a charter

names a port [or berth] and the master proceeds

there without protest, the owner accepts the port

[or berth] as a safe port, and is bound to the conditions that exist there.’” (Page 9, note 11, quotation alterations in original.) The opinion is cited as

quoting a published opinion by the Southern District of New York. Two treatises and two law review articles are cited in the same paragraph to

support the same principle.

Appellee’s brief: The appellee’s 6,439-word brief

cites 23 published opinions (15 by the Second Circuit, two by other circuits, and six by the Southern

District of New York, one of which was the district court’s opinion in this case) and four unpublished opinions (one by the Second Circuit and

three by the Southern District of New York).

The unpublished Second Circuit opinion is

cited to support the statement, “In reviewing the

district court’s confirmation of an arbitration

award, the court reviews legal issues de novo and

findings of fact for clear error.” (Page 10.) The

statement is supported by a citation to a published Second Circuit opinion, followed by a

string of two citations headed by “see also,” the

first of which is the unpublished opinion and the

second of which is another published Second Circuit opinion.

The brief cites an unpublished Southern District of New York opinion to support the statement, “A reviewing court is required to confirm

the award if it finds even ‘a barely colorable justification’ in the award, regardless of its view on

the merits.” (Page 8.)

After quoting a published Second Circuit opinion (”A court must not disturb an award simply

because of an arguable difference of opinion regarding the meaning or applicability of the
Citing Unpublished Opinions in Federal Appeals

152

laws.”), the brief invites the reader to “see” an unpublished Southern District of New York opinion

for another quotation: “manifest disregard standard is extremely high and the reviewing court is

not to substitute its own judgment of the facts or

interpretation of the contract for that of the arbitrators, even when convinced that they were

plainly wrong.” (Pages 12–13 and note 19.)

The third citation to an unpublished Southern

District of New York opinion is part of quoted

text from the published district court opinion in

this case.

Appellant’s reply brief: The appellant’s 3,998-

word reply brief cites nine published opinions

(one by the U.S. Supreme Court, four by the Second Circuit, one by another circuit, two by the

Southern District of New York, and one by New

York’s court of appeals).

Opinion: (3) The court’s published 4,391-word

signed opinion, Duferco International Steel Trading

v. T. Klaveness Shipping A/S, 333 F.3d 383 (2d Cir.

2003) (15 headnotes), cites 26 published opinions

(six by the U.S. Supreme Court, 18 by the Second

Circuit, one by another circuit, and the opinion by

the Southern District of New York in this case)

and one treatise. According to Westlaw

(04/06/2005), the court’s opinion has been cited

in five Second Circuit opinions (three published

and two unpublished), three opinions by other

circuits (two published and one unpublished), 16

opinions by the Southern District of New York

(six published and 10 unpublished), three published opinions by other Second Circuit districts,

one published opinion by a district in another circuit, one published opinion by New York’s appellate division, one unpublished opinion by New

York’s supreme court, one unpublished opinion

by Connecticut’s superior court, one unpublished

opinion by Alabama’s supreme court, 36 secondary sources, three briefs in three U.S. Supreme

Court cases, five appellate briefs in three cases in

other circuits, and 10 trial court briefs in five cases

(six briefs in three Southern District of New York

district court cases, one brief in a Southern District

of New York bankruptcy court case, and two

briefs in a case in another Second Circuit district).

Parra v. Geico Insurance Co. (2d Cir. 02–7324,

filed 03/27/2002, judgment 08/07/2002).

Appeal from: Eastern District of New York.

What happened: In a pro se appeal, the court of

appeals vacated the district court’s dismissal of

the complaint for the limited purpose of permitting the plaintiff to properly identify the defendants.

Opinion: (1) The court’s docket judgment cites

no opinions.

Shaw v. Greenwich Anesthesiology Associates,

P.C. (2d Cir. 02–7407, filed 04/15/2002, judgment

01/02/2003).

Appeal from: District of Connecticut.

What happened: Civil appeal withdrawn by

stipulation.

Related cases: Shaw v. Greenwich Anesthesiology

Associates, P.C. (2d Cir. 01–9005, filed 08/27/2001,

judgment 11/14/2001) (appeal withdrawn without prejudice by stipulation), Shaw v. Greenwich

Anesthesiology Associates, P.C. (2d Cir. 02–7443,

filed 04/24/2002, judgment 01/02/2003) (crossappeal withdrawn by stipulation).

Opinion: (1) The court’s docket judgment cites

no opinions.

Tsombanidis v. City of West Haven (2d Cir. 02–

7470, filed 04/29/2002, judgment 12/15/2003).

Appeal from: District of Connecticut.

What happened: This is a cross-appeal by the

plaintiffs in a successful action against a city and

its fire department for efforts to shut down group

housing for recovering alcoholics and drug addicts. The fire department’s appeal was successful

and the plaintiffs’ cross-appeal against the fire

department was unsuccessful. The city’s appeal,

which was briefed separately, was unsuccessful.

Related cases: The selected case was consolidated with Tsombanidis v. West Haven Fire Department (2d Cir. 02–7171, filed 02/14/2002, judgment

12/15/2003) (unsuccessful appeal by the city),

and Tsombanidis v. City of West Haven (2d Cir. 02–

7449, filed 04/24/2002, judgment 12/15/2003)

(successful appeal by the fire department).

Cross-appellee’s brief: The fire department’s

9,777-word appellant and cross-appellee brief

cites 47 published opinions (six by the U.S. Supreme Court, 19 by the Second Circuit, 15 by

other circuits, one by a Second Circuit district, and

six by districts in other circuits).

Cross-appellant’s brief: The plaintiffs’ 12,561-

word appellee and cross-appellant brief cites 41

published opinions (eight by the U.S. Supreme

Court, 14 by the Second Circuit, nine by other circuits, two by the District of Connecticut, three by

other Second Circuit districts, and five by districts

in other circuits) and one dictionary.

Cross-appellee’s reply brief: The fire department’s

2,490-word reply brief cites 20 published opinions

(one by the U.S. Supreme Court, two by the Second Circuit, 12 by other circuits, and five by districts in other circuits) and two unpublished opin-
Citing Unpublished Opinions in Federal Appeals

153

ions (one by another circuit and one by a district

in another circuit).

The brief cites an unpublished opinion by the

Northern District of Illinois, noting that it was

affirmed by a published opinion by the Seventh

Circuit, as second in a string headed by a published opinion by the Seventh Circuit to support

the statement: “A local government’s mere enforcement of state law, as opposed to express incorporation or adoption of state law into local

regulations or codes, has been found insufficient

to establish liability.” (Page 2.) This two-citation

string is followed by a “see also” string of 11 citations over eight pages, most with long parenthetical quotations. One of these citations is a published opinion by the Southern District of Ohio,

and the brief notes that the decision was affirmed

in part and vacated in part by an unpublished

Sixth Circuit opinion.

Cross-appellant’s reply brief: The plaintiffs’ 2,348-

word reply brief cites 15 published opinions

(three by the U.S. Supreme Court, six by the Second Circuit, and six by other circuits).

Opinion: (3) The court’s published 6,834-word

signed opinion, Tsombanidis v. West Haven Fire

Department, 352 F.3d 565 (2d Cir. 2003) (25 headnotes), cites 34 published opinions (six by the U.S.

Supreme Court, 18 by the Second Circuit, seven

by other circuits, and three by the district court in

this case). According to Westlaw (04/06/2005),

the court’s opinion has been cited in two unpublished Second Circuit opinions, one unpublished

opinion by a Second Circuit district, two opinions

by districts in other circuits (one published and

one unpublished), two unpublished administrative decisions, 17 secondary sources, and four trial

court briefs in three district court cases in other

circuits.

Grim v. Rhinebeck Central School District (2d

Cir. 02–7483, filed 04/30/2002, judgment

10/08/2003).

Appeal from: Southern District of New York.

What happened: Successful appeal by a school

district of the district court’s determination that

the school district failed to provide a disabled

student with an adequate individualized education program (IEP).

Appellant’s brief: The school district’s 9,881-

word appellant brief cites 28 published opinions

(two by the U.S. Supreme Court, 10 by the Second

Circuit, 12 by other circuits, three by Second Circuit districts, and one by a district in another circuit) and three unpublished opinions (two by

other circuits and one by the Southern District of

New York).

The unpublished opinion by the Southern District of New York is cited with a U.S. Supreme

Court opinion and three published opinions by

other circuits in a string citation to support the

principle that “deference is particularly warranted

with regard to administrative decisions concerning the methodology to be used in educating the

disabled student.” (Pages 28–29.)

The brief cites an unpublished opinion by the

Fourth Circuit with a published opinion by another circuit to support the principle that trained

educators are “exactly [the] kinds of persons to

whom the federal courts are to give deference.”

(Page 30.) Each citation includes a parenthetical

quotation. The unpublished opinion is cited again

as part of a string citation including two published and two unpublished opinions by other

circuits to complete the invitation, “Concerning

other procedural violations requiring a showing

of an actual deprivation of educational benefits,

see also.” (Page 33.) Finally, this unpublished

Fourth Circuit opinion is cited repeatedly to support a two-page discussion concerning the timing

of the district’s development of the disabled student’s IEP.

The brief includes an unpublished Tenth Circuit opinion in the string citation illustrating

“other procedural violations requiring a showing

of an actual deprivation of educational benefits”

(page 33), and cites the unpublished opinion in

three additional places. The brief cites the unpublished opinion to support a statement that “The

court below erred in adopting a standard requiring greater specificity with regard to those IEP’s”

(page 38), with seven lines of text and 10 lines of

footnote amplifying the support. The unpublished

opinion is also included in two string citations,

headed “see also” and also including three published opinions by other circuits. In one case the

brief includes the parenthetical explanation, “IEP

upheld though allegedly not containing measurable short-term objectives or objective criteria for

measuring student’s success” (page 40), and in the

other case the brief includes the parenthetical explanation, “any deficiency in the IEP process must

result in prejudice to the student or his parents

before a court may find that the IDEA was violated” (page 41).

Appellee’s brief: The parent’s 5,015-word appellee brief cites 19 published opinions (one by the

U.S. Supreme Court, three by the Second Circuit,

12 by another circuit, one by a Second Circuit district, and two by districts in other circuits) and

one unpublished opinion by a district in another

circuit.
Citing Unpublished Opinions in Federal Appeals

154

The brief cites an unpublished opinion by the

Northern District of Illinois to support the statement, “Simply put, because the state and local

education agencies ‘have much greater expertise

in educational policy,’ the court should not ‘reverse the hearing officer’s decision simply because [the court] disagrees with the decision.’”

(Page 16.)

Opinion: (3) The court’s published 2,740-word

signed opinion, Grim v. Rhinebeck Central School

District, 346 F.3d 377 (2d Cir. 2003) (six headnotes), cites six published opinions (one by the

U.S. Supreme Court, three by the Second Circuit,

and two by other circuits) and the Southern District of New York’s unpublished opinion in this

case. According to Westlaw (04/05/2005), the

court’s opinion has been cited in one published

opinion by another circuit, one published opinion

by the Southern District of New York, four opinions by other Second Circuit districts (two published and two unpublished), eight secondary

sources, and one petition for writ of certiorari in

the U.S. Supreme Court.

The court initially resolved the appeal with an

unpublished 2,504-word summary order, Grim v.

Rhinebeck Central School District, 74 Fed. Appx.

137, 2003 WL 22092349 (2d Cir. 2003) (no headnotes), citing three published opinions (one by the

U.S. Supreme Court and two by the Second Circuit) and the Southern District of New York’s unpublished opinion in this case. According to Westlaw (04/05/2005), the court’s order has been cited

in two secondary sources.

A day later the court issued an unpublished

2,653-word amended summary order, citing six

published opinions (one by the U.S. Supreme

Court, three by the Second Circuit, and two by

other circuits) and the Southern District of New

York’s unpublished opinion in this case. The

amended order expands one paragraph and adds

three citations. The published opinion appears to

be a copy-edited version of the amended summary order.

Raimondo v. Merrill Lynch & Co. (2d Cir. 02–

7577, filed 05/17/2002, judgment 01/02/2003).

Appeal from: Southern District of New York.

What happened: Settled appeal.

Opinion: (1) The court’s docket judgment cites

no opinions.

Schachter v. United States Life Insurance

Company in the City of New York (2d Cir. 02–

7840, filed 07/23/2002, judgment 10/02/2003).

Appeal from: Eastern District of New York.

What happened: Unsuccessful pro se civil appeal

of an action on behalf of a home attendant; appeal

was dismissed for lack of standing. The plaintiff

argued that the attendant’s receiving only 43% of

the amount paid by the plaintiff’s insurance company amounted to a violation of the Thirteenth

Amendment’s prohibition on involuntary servitude.

Related cases: Previous unsuccessful appeals by

the appellant include Schachter v. Community

School Board District 24 (2d Cir. 93–7019, filed

01/07/1993, judgment 01/28/1993) (pro se appeal

dismissed sua sponte for failure to file a timely

notice of appeal) and Schachter v. Community

School Board District 24 (2d Cir. 93–7663, filed

07/08/1993, judgment 04/08/1994) (unsuccessful

pro se appeal).

Appellee’s brief: The insurer’s 1,170-word appellee brief cites four U.S. Supreme Court opinions.

Opinion: (2) The court’s unpublished 451-word

summary order, Schachter v. United States Life Insurance Company in the City of New York, 77 Fed.

Appx. 41, 2003 WL 22273044 (2d Cir. 2003) (two

headnotes), cites five published opinions (one by

the U.S. Supreme Court and four by the Second

Circuit). According to Westlaw (04/06/2005), the

court’s summary order has not been cited elsewhere.

Witherspoon v. Rappaport (2d Cir. 02–7920, filed

08/07/2002, judgment 11/05/2002).

Appeal from: Eastern District of New York.

What happened: Civil appeal withdrawn by

stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

The Robeworks, Inc. v. Russell-Newman, Inc. (2d

Cir. 02–9132, filed 09/27/2002, judgment

08/05/2003).

Appeal from: Southern District of New York.

What happened: Civil appeal withdrawn by

consent.

Related case: Russell-Newman, Inc. v. The Robeworks, Inc. (2d Cir. 03–7586, filed 06/06/2003,

judgment 08/05/2003) (civil appeal withdrawn

by consent).

Opinion: (1) The court’s docket judgment cites

no opinions.

Hondros v. Villa Marin GMC, Inc. (2d Cir. 02–

9165, filed 10/04/2002, judgment 04/01/2003).

Appeal from: Eastern District of New York.

What happened: Civil appeal withdrawn by

stipulation.

Related cases: Consolidated appeals, General

Motors Corp. v. Villamarin Chevrolet, Inc. (2d Cir.
Citing Unpublished Opinions in Federal Appeals

155

02–9162, filed 10/04/2002, judgment 04/01/2003)

and Villa Marin Chevrolet, Inc. v. General Motors

Corp. (2d Cir. 02–9167, filed 10/04/2002, judgment 04/01/2003), also were withdrawn by

stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

Fernicola v. General Motors Acceptance Corp. (2d

Cir. 02–9486, filed 12/24/2002, judgment

03/28/2003).

Appeal from: Northern District of New York.

What happened: Motion to proceed in forma

pauperis denied and appeal dismissed as without

arguable basis.

Related cases: Fernicola v. Andrejewski (2d Cir.

00–7305, filed 03/20/2000, judgment 05/04/2000)

(pro se appeal dismissed as untimely), Fernicola v.

Andrejewski (2d Cir. 00–7383, filed 04/03/2000,

judgment 05/22/2000) (pro se appeal dismissed

as untimely), Fernicola v. Eannace (2d Cir. 00–9364,

filed 10/26/2000, judgment 01/09/2002) (unsuccessful pro se appeal), Fernicola v. Healthcare Underwriters Mutual Insurance Co. (2d Cir. 01–3001,

filed 01/08/2001, judgment 03/02/2001) (pro se

petition for writ of mandamus denied), Fernicola v.

United States (2d Cir. 02–3002, filed 01/02/2002,

judgment 02/22/2002) (pro se petition for writ of

mandamus denied), Fernicola v. Healthcare Underwriters Mutual Insurance Co. (2d Cir. 02–7151, filed

02/07/2002, judgment 11/08/2002) (pro se appeal

dismissed as settled), Fernicola v. General Motors

Acceptance Corp. (2d Cir. 02–7557, filed

05/10/2002) (in forma pauperis status granted

and district court judgment vacated so that appellants may be heard as to whether a filing injunction should be imposed). Case 02–7151 was also

selected for this study.

Opinion: (1) The court’s docket judgment cites

no opinions.

Weeks v. New York State Division of Parole (2d

Cir. 02–9510, filed 12/31/2002, judgment

10/23/2003).

Appeal from: Eastern District of New York.

What happened: Unsuccessful appeal of an unsuccessful employment discrimination action.

Appellant’s brief: The employee’s 2,657-word

appellant brief cites nine published opinions (four

by the U.S. Supreme Court, two by the Second

Circuit, and three by a Second Circuit district).

Appellee’s brief: The Division of Parole’s 4,786-

word appellee brief cites 24 published opinions

(six by the U.S. Supreme Court; 14 by the Second

Circuit, including an earlier related appeal; three

by other circuits, and one by the Eastern District

of New York).

Appellant’s reply brief: The employee’s 1,728-

word reply brief cites six published opinions

(three by the U.S. Supreme Court and three by a

Second Circuit district).

Opinion: (2) The court’s unpublished 1,102-

word summary order, Weeks v. New York State Division of Parole, 78 Fed. Appx. 764, 2003 WL

22427940 (2d Cir. 2003) (two headnotes), cites six

published opinions (one by the U.S. Supreme

Court and five by the Second Circuit, including an

opinion in a related appeal). According to Westlaw (04/06/2005), the court’s summary order has

been cited in two secondary sources.

3. Third Circuit

80

Citations to unpublished opinions are permitted in the Third Circuit, but there is a tradition against such citations in court opinions.

81

Of the 50 cases randomly selected, 46 are

appeals from district courts (18 from the Eastern District of Pennsylvania, 11 from the District of New Jersey, 10 from the Middle

District of Pennsylvania, four from the Western District of Pennsylvania, two from the

District of Delaware, and one from the District of the Virgin Islands) and four are appeals from the Board of Immigration Appeals.

82

 80. Docket sheets are on PACER. Published opinions and most unpublished opinions (17 out of 19 in

this sample) are on the court’s website, its intranet site,

and Westlaw. Some briefs are on Westlaw. (Of the 25

cases in this sample with opinions on Westlaw and

counseled briefs in the case file, all briefs are on Westlaw for seven cases, and some briefs are on Westlaw for

two cases.)

81. 3d Cir. I.O.P. 5.7 (“The court by tradition does

not cite to its not precedential opinions as authority.

Such opinions are not regarded as precedents that bind

the court because they do not circulate to the full court

before filing.”).

The court’s internal operating procedure rule discouraging the court’s citation to its unpublished opinions was adopted July 1, 1990. The words “by tradition”

were added in 1994.

82. In 2002, 3,686 cases were filed in the court of appeals for the Third Circuit.
Citing Unpublished Opinions in Federal Appeals

156

The publication rate in this sample will

be from 10% to 12% once all the cases are resolved. Five of the appeals were resolved by

published signed opinions (including one

with a concurrence, one with a partial concurrence, and one with a dissent), 19 were

resolved by unpublished opinions (13 of

which were signed and published in the Federal Appendix and six of which were per curiam opinions—including one opinion published in the Federal Appendix and five opinions tabled in the Federal Appendix), 25 were

resolved by docket judgments, and one case

has not yet been resolved.

Published opinions averaged 8,470

words in length, ranging from 2,470 to 16,512.

Unpublished opinions averaged 1,190 words

in length, ranging from 176 to 5,892. Eleven

opinions (46%, all unpublished) were under

1,000 words in length, and one of these (4%)

was under 500 words in length.

Twenty of the cases were fully briefed.

In 25 of the appeals no counseled brief was

filed, and in five of the appeals a counseled

brief was filed only for one side.

83

There are citations to unpublished court

opinions in 14 of the cases. In four cases the

citations are only to opinions in related cases;

in 10 cases there are citations to unpublished

court opinions in unrelated cases. One published opinion and one published concurrence cite unpublished district court opinions; in the other eight cases the citations to

unrelated unpublished opinions are only in

the briefs.

The four unrelated unpublished opinions cited by the court in these cases are all

opinions by the district court for the Eastern

District of Pennsylvania. Five of the unrelated

unpublished opinions cited by the parties are

by the court of appeals for the Third Circuit,

 

83. It is possible that the case that is not yet resolved

may ultimately be fully briefed. The case is a prisoner’s

appeal in which appointed counsel requested by motion a remand for development of a more complete record.

one is by a court of appeals for another circuit, seven are by Third Circuit district

courts, one is by a Third Circuit bankruptcy

court, four are by district courts in other circuits, one is by a bankruptcy court in another

circuit, and one is by Delaware’s court of

chancery.

C3–1. In a published opinion, W.V. Realty Inc. v. Northern Insurance Company of New

York, 334 F.3d 306 (3d Cir. 2003) (overturning

a Middle District of Pennsylvania jury award

based on a finding of insurance bad faith, because irrelevant and prejudicial evidence

concerning discovery misconduct was admitted at trial), resolving 02–2910 (filed

07/15/2002, judgment 06/27/2003), the court

of appeals for the Third Circuit cited three

unpublished opinions by the district court for

the Eastern District of Pennsylvania to show

how trial courts in Pennsylvania have handled discovery misconduct in bad-faith cases.

The opinion cites two of these opinions

and a published opinion by the district court

for the Middle District of Pennsylvania to

support the statement that “those cases in

which courts have permitted bad faith claims

to go forward based on conduct which occurred after the insured filed suit all involved

something beyond a discovery violation, suggesting that the conduct was intended to

evade the insurer’s obligations under the insurance contract.”

In two places, the court’s opinion also

cites an unpublished opinion by the district

court for the Eastern District of Pennsylvania

that the insurance company cited in its briefs,

Slater v. Liberty Mutual Insurance Co., 1999 WL

178367 (E.D. Pa. 1999). First, the court’s opinion cites a published opinion by Pennsylvania’s superior court that quotes Slater. Second, the court’s opinion cites Slater and a

published opinion by Pennsylvania’s court of

common pleas following a discussion of a

published opinion by Pennsylvania’s superior court amplifying the statement that “[i]n

those cases in which nothing more than dis-
Citing Unpublished Opinions in Federal Appeals

157

covery violations were alleged, courts have

declined to find bad faith.”

The insurance company’s appellant brief

cites four unpublished opinions by the district court for the Eastern District of Pennsylvania. The brief cites Slater and another unpublished opinion by the district court for the

Eastern District of Pennsylvania in an argument that discovery misconduct is not relevant to insurance bad faith. The brief cites

another two unpublished opinions by the district court for the Eastern District of Pennsylvania and a published opinion by Pennsylvania’s superior court to support the statement

that the state’s bad-faith statute clearly mandates that certain issues be tried without a

jury.

To rebut an assertion by the insured that

the insurance company’s opening brief misstates the holding of a published opinion by

Pennsylvania’s court of appeals, in its reply

brief the insurance company quoted the

Pennsylvania opinion extensively, and the

quotation includes a citation by the Pennsylvania superior court to Slater. The brief also

states that a published opinion by the district

court for the Middle District of Pennsylvania

cites Slater with approval.

C3–2. In an unsuccessful appeal of a preliminary allocation of attorney fees in pending multidistrict litigation over fen-phen diet

drugs, Brown v. American Home Products Corp.

(3d Cir. 02–4074, filed 11/07/2002, judgment

03/20/2005), resolved by published opinion

at In re Diet Drugs (Phentermine/Fenfluramine/

Dexfenfluramine) Products Liability Litigation,

401 F.3d 143 (finding the preliminary allocation not yet appealable), a concurring judge

cited an unpublished opinion by the district

court for the Eastern District of Pennsylvania

with seven published district court opinions

from various circuits as examples of “decisions in which courts have delegated the task

of allocating fees among counsel to lead

counsel or have relied on an agreement

reached by counsel.”

In its appellee brief, the plaintiffs’ management committee cited an unpublished

opinion by the district court for the Eastern

District of Pennsylvania and an unpublished

opinion by the bankruptcy court for the District of Colorado. The brief includes the Eastern District of Pennsylvania opinion in a

string of citations supporting a statement that

“It is by now an unassailable proposition that

a federal district court presiding over a mass

tort MDL may properly award a fee to the

plaintiffs’ management structure appointed

by it, payable out of the fees derived from the

representation of the individual litigants

whose cases are subject to coordinated pretrial proceedings in the MDL transferee

court.” The string includes citations to published opinions by four federal courts of appeals, two district courts within those circuits, and the Federal Judicial Center’s Manual for Complex Litigation, Third. The brief includes the bankruptcy court opinion in a

string of citations to support a statement that

“This material [referring to material assembled by the committee for the benefit of other

plaintiffs’ attorneys] is classic ‘attorney work

product’ entitled to protection against compelled disclosure to any person who does not

provide fair compensation for the effort involved in creating it.” The other citations in

the string are three published opinions by the

court of appeals for the Third Circuit.

C3–3. In a case affirming a cocaine conviction on the granting of an Anders

84 motion,

United States v. Shaw (3d Cir. 02–2269, filed

05/09/2002, judgment 05/22/2003), resolved

by unpublished opinion at 65 Fed. Appx. 851,

2003 WL 21197052, the government’s appellee brief includes one published and two unpublished Third Circuit opinions in a footnote string citation supporting a statement

 

84. See Anders v. California, 386 U.S. 738 (1976)

(holding that court-appointed appellate counsel may

seek to withdraw on the grounds that the appeal would

be frivolous only upon briefing the court of “anything

in the record that might arguably support the appeal”).
Citing Unpublished Opinions in Federal Appeals

158

that the court has disposed of wholly frivolous appeals by dismissal and by affirmance.

C3–4. Similarly, in a case affirming a

conviction for illegally entering the United

States after conviction for an aggravated felony on the granting of an Anders motion,

United States v. Douglas (3d Cir. 02–4103, filed

11/07/2002, judgment 06/16/2003), resolved

by unpublished opinion at 67 Fed. Appx. 733,

2003 WL 21380555, the same government attorneys who appeared in the Shaw case included the same Third Circuit opinions—one

published and two unpublished—in a footnote string citation supporting a statement

that the court has disposed of appeals with

Anders motions by dismissal and by affirmance.

C3–5. In an unsuccessful appeal of the

denial of summary judgment to emergency

medical technicians who responded to a 911

call for a man having a seizure and responded to his erratic behavior by calling the

police, after which the man died, Rivas v. City

of Passaic (3d Cir. 02–3875, filed 10/17/2002,

judgment 04/26/2004), resolved by published opinion at 365 F.3d 181, the briefs cite

several unpublished opinions.

The technicians cited an unpublished

opinion by the court of appeals for the Third

Circuit in their appellant brief to support

their argument that “the court below failed to

comb the record and Local Rule 56.1 statement.”

The plaintiffs cited two unpublished district court opinions. Their appellee brief cites

an unpublished opinion by the district court

for the Eastern District of Pennsylvania as

holding that “it was foreseeable that a 911 call

misdirected to a private ambulance company

rather than the authorized Fire Department

Rescue units appropriately staffed to respond

to such emergencies would result in serious

harm or death.” The brief also cites an unpublished opinion by the district court for the

Northern District of Illinois as holding that

the “plaintiff had a valid claim against paramedics for failure to intervene to protect decedent’s safety when the police placed decedent face down in the street, handcuffed him,

choked him and inflicted additional injuries

on him.”

The technicians’ reply brief includes an

unpublished opinion by the court of appeals

for the Sixth Circuit in a string of two citations intended to show that “Consistent with

the Third Circuit’s holding in Anela [v. City of

Wildwood, 790 F.2d 1063 (3d Cir. 1986)], other

courts have granted summary judgment for

defendants in § 1983 cases where the plaintiff

could not identify the accountable state actors

and the circumstantial evidence of said actors’ identities was too attenuated.” The other

opinion cited in the string is a published

opinion by the court of appeals for the Tenth

Circuit.

C3–6. In an unsuccessful pro se appeal

of an injunction against a malicious prosecution claim in a securities and bankruptcy action, Signator Investors v. Olick (3d Cir. 02–

3437, filed 09/06/2002, judgment

11/07/2003), resolved by unpublished opinion tabled at Signator Investors v. Olick, 85

Fed. Appx. 874, 2003 WL 22881726, an investment company’s appellee brief twice cites

an unpublished opinion by the court of appeals for the Third Circuit as concluding that

“the Supreme Court would not create a distinct cause of action for the spoliation of evidence brought outside an existing personal

injury or products liability action.”

C3–7. In an unsuccessful ERISA appeal

of summary judgment in favor of an employer in an action for severance benefits,

Young v. Pennsylvania Rural Electric Ass’n (3d

Cir. 02–3946, filed 10/25/2002, judgment

11/17/2003), resolved by unpublished opinion at 80 Fed. Appx. 785, 2003 WL 22701472,

the employer’s appellee brief cites one unpublished and two published opinions by the

court of appeals for the Third Circuit to support a statement that “‘Serious consideration’

of changes in plan benefits is sufficient to
Citing Unpublished Opinions in Federal Appeals

159

trigger a fiduciary duty to provide complete

and truthful information about such changes

in response to an employee’s inquiry.”

C3–8. In an unsuccessful appeal of a jury

verdict in favor of an insurance company in

which the claimant claimed damage to his

furniture store from a boulder dislodged by

hurricane Floyd, McGinnis v. Ohio Casualty

Insurance Co. (3d Cir. 02–2802, filed

06/28/2002, judgment 05/23/2003), resolved

by unpublished opinion at 67 Fed. Appx. 127,

2003 WL 21205882, the insurance company

cited one unpublished opinion and two published opinions by the district court for the

Eastern District of Pennsylvania in its appellee brief to support a statement that “It is

clear that in the Eastern District, the Court is

the gatekeeper in bad faith.”

C3–9. In an unsuccessful appeal of the

denial of a preliminary injunction in a dispute over intellectual property rights in a

french fry vending machine, Silver Leaf, LLC

v. Tasty Fries, Inc. (3d Cir. 02–2767, filed

06/27/2002, judgment 10/30/2002), resolved

by unpublished opinion at 51 Fed. Appx. 366,

2002 WL 31424691, the distributor’s appellant

brief cites two unpublished opinions by the

district court for the Southern District of New

York to support a statement that “bad faith

on the part of the party seeking to enforce an

exculpatory clause will invalidate such a

clause.” One of the opinions is included in a

string citation with two published opinions

by the appellate division of New York’s supreme court, and the other is included in a

footnote appended to the string citation and

headed “see also.”

C3–10. In a voluntarily dismissed appeal

of the dismissal of a bankruptcy case by the

district court for the District of Delaware, In

re Primestone Investment Partners L.P. (3d Cir.

02–1409, filed 02/08/2002, judgment

05/28/2002), resolved by docket judgment,

both the debtor and the creditor cited unpublished opinions in their briefs.

In addition to citing three unpublished

orders issued in this case, the debtor’s brief

cites an unpublished opinion by the district

court for the District of South Carolina. The

brief includes this unpublished opinion in a

string of three opinions that “have recognized that ‘[p]etitions in bankruptcy arising

out of a two-party dispute do not per se constitute a bad-faith filing by the debtors.’” The

other two opinions in the string are published

opinions by the Ninth Circuit’s bankruptcy

appellate panel and the Middle District of

Florida’s bankruptcy court.

The creditor’s brief cites two unpublished opinions—one by the bankruptcy

court for the Middle District of Pennsylvania

and one by a Delaware court of chancery. The

brief cites the unpublished bankruptcy court

opinion as quoted by a published opinion by

the district court for the Eastern District of

Pennsylvania listing good-faith factors. The

brief cites the chancery court opinion and a

law review article to support the theory that

businesses on the verge of bankruptcy have

an incentive to take large financial risks.

Individual Case Analyses

Fullard v. Argus Research Lab (3d Cir. 02–1077,

filed 01/10/2002, judgment 03/29/2002).

Appeal from: Eastern District of Pennsylvania.

What happened: Civil appeal dismissed by

stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Ali (3d Cir. 02–1142, filed

01/17/2002, judgment 03/04/2002).

Appeal from: District of New Jersey.

What happened: Criminal appeal dismissed as

untimely.

Opinion: (1) The court’s 87-word docket judgment cites four published opinions (one by the

U.S. Supreme Court and three by the Third Circuit).

Dottle v. Brennan (3d Cir. 02–1308, filed

01/31/2002, judgment 01/09/2003).

Appeal from: Western District of Pennsylvania.

What happened: Certificate of appealability denied.
Citing Unpublished Opinions in Federal Appeals

160

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Saxton (3d Cir. 02–1328, filed

02/05/2002, judgment 11/07/2002).

Appeal from: Middle District of Pennsylvania.

What happened: Unsuccessful appeal of a criminal sentence enhancement by the husband of a

prothonotary and clerk of court who embezzled

funds so that the couple could have a lavish lifestyle.

Related case: United States v. Saxton (3d Cir. 02–

1326, filed 02/05/2002, judgment 11/07/2002)

(prothonotary’s unsuccessful appeal).

Appellant’s brief: The defendant’s 1,327-word

appellant brief cites seven published opinions

(one by the Third Circuit and six by other circuits).

Appellee’s brief: The government’s 2,609-word

appellate brief cites five published opinions (four

by the Third Circuit and one by another circuit).

Opinion: (2) The court’s unpublished 904-word

signed opinion, United States v. Saxton, 54 Fed.

Appx. 351, 2002 WL 31882238 (3d Cir. 2002), cites

six published opinions (five by the Third Circuit

and one by another circuit). According to Westlaw

(03/21/2005), the court’s opinion has not been

cited elsewhere.

Aruanno v. Cape May City Jail (3d Cir. 02–1395,

filed 02/07/2002, judgment pending).

Appeal from: District of New Jersey.

What happened: Prisoner’s appeal. The prisoner’s appointed attorney has requested that the

court summarily vacate the district court’s orders

and remand for development of a more complete

record.

Related case: Aruanno v. Cape May City Jail (3d

Cir. 02–1772, filed 03/19/2002, judgment

4/30/2002) (prisoner petition dismissed for want

of prosecution).

Opinion: (0) The case is still open.

In re Primestone Investment Partners L.P. (3d

Cir. 02–1409, filed 02/08/2002, judgment

05/28/2002).

Appeal from: District of Delaware.

What happened: Voluntary dismissal of a bankruptcy debtor’s appeal of the dismissal of its

bankruptcy case.

Appellant’s brief: The debtor’s 13,840-word appellant brief cites 41 published opinions (one by

the U.S. Supreme Court, five by the Third Circuit,

nine by other circuits, one by another circuit’s

bankruptcy appellate panel, one by the District of

Delaware, one by the District of Delaware’s bankruptcy court, two by other Third Circuit districts,

one by another Third Circuit district’s bankruptcy

court, two by districts in other circuits, and 18 by

bankruptcy courts in other circuits’ districts), one

unpublished opinion by a district in another circuit, three unpublished orders in this case (two by

the District of Delaware and one by the District of

Delaware’s bankruptcy court), and one treatise.

The brief includes a citation to an unpublished

opinion by the District of South Carolina in a

string of three opinions that “have recognized that

‘[p]etitions in bankruptcy arising out of a twoparty dispute do not per se constitute a bad-faith

filing by the debtors.’” (Page 50.) The other two

opinions in the string are published opinions by

the Ninth Circuit’s bankruptcy appellate panel

and the Middle District of Florida’s bankruptcy

court.

Appellee’s brief: The creditor’s 12,490-word appellee brief cites 64 published opinions (three by

the U.S. Supreme Court, eight by the Third Circuit, 16 by other circuits, one by another circuit’s

bankruptcy appellate panel, one by the District of

Delaware, four by the District of Delaware’s bankruptcy court, three by other Third Circuit districts,

two by other Third Circuit District’s bankruptcy

courts, 10 by other districts in other circuits, 15 by

bankruptcy courts in other circuits’ districts, and

one by Louisiana’s court of appeals), two unpublished opinions (one by the Middle District of

Pennsylvania’s bankruptcy court and one by

Delaware’s court of chancery), two legal treatises,

two law review articles, and another legal text.

The brief cites an unpublished opinion by

Delaware’s court of chancery and a law review

article to support the statement, “Since equity

holders have little or nothing at stake in an insolvent business, they are motivated to adopt highrisk business strategies knowing that they will

reap the benefits of success while only the creditors suffer the consequences of failure.” (Page 23.)

The citation to the opinion includes the following

parenthetical quotation: “The possibility of insolvency can do curious things to incentives, exposing creditors to risks of opportunistic behavior.”

(Page 24.)

The brief extensively cites a published opinion

by the Eastern District of Pennsylvania. The brief

attributes a list of good-faith factors to this opinion—”In this Circuit, lower courts have identified

what Primestone agrees is a ‘representative list’ of

‘recurrent factors’ used to identify the absence of

good faith” (page 27)—and acknowledges that the

published opinion by the Eastern District of Pennsylvania quotes an unpublished opinion by the
Citing Unpublished Opinions in Federal Appeals

161

Middle District of Pennsylvania’s bankruptcy

court.

Appellant’s reply brief: The debtor’s 7,745-word

reply brief cites 24 published opinions (two by the

U.S. Supreme Court, four by the Third Circuit,

nine by other circuits, one by a Third Circuit district, four by districts in other circuits, and four by

bankruptcy courts in other circuits), one treatise,

and three legal articles.

Opinion: (1) The court’s docket judgment cites

no opinions.

Harris v. Johnson (3d Cir. 02–1496, filed

02/20/2002, judgment 07/10/2002).

Appeal from: Western District of Pennsylvania.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 234-word docket judgment cites two published opinions (one by the

U.S. Supreme Court and one by the Third Circuit).

Kimmage-Zoldi v. CNA (3d Cir. 02–1501, filed

02/21/2002, judgment 08/26/2002).

Appeal from: Eastern District of Pennsylvania.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

J.M. v. Deptford Township School District (3d

Cir. 02–1527, filed 02/22/2002, judgment

08/19/2002).

Appeal from: District of New Jersey.

What happened: Appeal of a civil rights judgment dismissed for failure to file a brief.

Opinion: (1) The court’s docket judgment cites

no opinions.

Zhelyatdinov v. Attorney General (3d Cir. 02–

1559, filed 02/26/2002, judgment 05/17/2002).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

for lack of jurisdiction.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Williams (3d Cir. 02–1649, filed

03/08/2002, judgment 01/07/2003).

Appeal from: Middle District of Pennsylvania.

What happened: Unsuccessful appeal of a criminal sentence for investment fraud.

Related case: United States v. Viggiano (3d Cir.

02–1650, filed 03/08/2002, judgment 01/07/2003)

(unsuccessful appeal by codefendant of his sentence resolved by same opinion as selected case).

Appellant’s brief: The defendant’s 3,801-word

brief cites 14 published opinions (one by the U.S.

Supreme Court, nine by the Third Circuit, and

four by other circuits).

Appellee’s brief: The government’s 3,560-word

appellee brief cites 16 published opinions (one by

the U.S. Supreme Court, 13 by the Third Circuit,

and two by another circuit) and eight related

cases (the codefendant’s appeal, the case from

which the appellant appealed, and six other codefendants’ trial court cases).

Appellant’s reply brief: The defendant’s 2,045-

word reply brief cites 10 published opinions (one

by the U.S. Supreme Court, five by the Third Circuit, and four by other circuits).

Opinion: (2) The court’s unpublished 1,915-

word signed opinion, United States v. Williams, 57

Fed. Appx. 907, 2003 WL 42471 (3d Cir. 2003)

(three headnotes), cites eight published opinions

(two by the U.S. Supreme Court, five by the Third

Circuit, and one by another circuit) and Black’s

Law Dictionary. According to Westlaw

(03/21/2005), the court’s opinion has not been

cited elsewhere.

IBF Special Purpose Corp. III v. First American

Development Group/Carib. Ltd. Partnership (3d

Cir. 02–1689, filed 03/12/2002, judgment

03/04/2003).

Appeal from: District of the Virgin Islands.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Baines (3d Cir. 02–1747, filed 03/15/2002,

judgment 04/22/2002).

Appeal from: Eastern District of Pennsylvania.

What happened: Request to file a successive habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Cai v. Attorney General (3d Cir. 02–1928, filed

04/05/2002, judgment 04/29/2003).

Appeal from: Board of Immigration Appeals.

What happened: Successful immigration appeal

because the Immigration and Naturalization Service failed to consider the impact of having several

children on a deportation to China.

Petitioner’s brief: The petitioner’s 14,015-word

brief cites 24 published court opinions (five by the

U.S. Supreme Court, eight by the Third Circuit,

nine by other circuits, and two by districts in

other circuits), seven published decisions of the

Board of Immigration Appeals, and several media
Citing Unpublished Opinions in Federal Appeals

162

articles included in the joint appendix, only one of

which is cited in the brief by title.

Respondent’s brief: The government’s 4,305-

word respondent brief cites 23 published court

opinions (nine by the U.S. Supreme Court, three

by the Third Circuit, and 11 by other circuits) and

three published decisions of the Board of Immigration Appeals.

Opinion: (2) The court’s unpublished 2,188-

word signed opinion, Cai v. Ashcroft, 63 Fed.

Appx. 625, 2003 WL 1972020 (3d Cir. 2003) (one

headnote), cites five published court opinions

(four by the Third Circuit and one by another circuit), three published decisions of the Board of

Immigration Appeals, two unpublished decisions

of the Board of Immigration Appeals in this case,

and one unpublished decision of the immigration

court in this case. According to Westlaw

(03/21/2005), the court’s opinion has been cited

in one published opinion by the Third Circuit and

one appellate brief in an Eighth Circuit case.

United States v. Shaw (3d Cir. 02–2269, filed

05/09/2002, judgment 05/22/2003).

Appeal from: District of New Jersey.

What happened: Cocaine conviction affirmed on

the granting of an Anders motion.

Anders brief: The defendant’s counsel’s 1,629-

word Anders brief cites five published opinions

(one by the U.S. Supreme Court and four by the

Third Circuit).

Appellee’s brief: The government’s 2,253-word

brief cites 15 published opinions (four by the U.S.

Supreme Court, nine by the Third Circuit, and

two by other circuits) and two unpublished Third

Circuit opinions.

Footnote 5 in the brief supports the statement,

“This Court has disposed of [wholly frivolous]

appeals either by dismissal or by affirmance.”

(Pages 9–10.) The footnote begins with a string of

citations to three Third Circuit opinions—one

published and two unpublished.

Opinion: (2) The court’s unpublished 729-word

signed opinion, United States v. Shaw, 65 Fed.

Appx. 851, 2003 WL 21197052 (3d Cir. 2003) (two

headnotes), cites four published opinions (one by

the U.S. Supreme Court and three by the Third

Circuit). According to Westlaw (03/21/2005), the

court’s opinion has not been cited elsewhere.

United States v. Gori (3d Cir. 02–2409, filed

05/22/2002, judgment 04/08/2003).

Appeal from: District of New Jersey.

What happened: Unsuccessful appeal of a criminal sentence concerning drug quantity.

Appellant’s brief: The defendant’s 4,942-word

appellant brief cites 24 published opinions (five

by the U.S. Supreme Court, eight by the Third

Circuit, 10 by other circuits, and one by another

circuit’s district).

Appellee’s brief: The government’s 8,337-word

appellee brief cites 37 published opinions (eight

by the U.S. Supreme Court, 15 by the Third Circuit, 13 by other circuits, and one by another circuit’s district).

Opinion: (3) The court’s published 2,470-word

signed opinion, United States v. Gori, 324 F.3d 234

(3d Cir. 2003) (nine headnotes), cites 21 published

opinions (three by the U.S. Supreme Court, 11 by

the Third Circuit, and seven by other circuits).

According to Westlaw (03/21/2005), the court’s

opinion has been cited in four Third Circuit opinions (one published and three unpublished), two

opinions by other circuits (one published and one

unpublished), two opinions by Third Circuit districts (one published and one unpublished), two

unpublished opinions by other districts, one published opinion by Ohio’s court of appeals, two

secondary sources, and one appellate brief in a

Third Circuit case.

United States v. Morgan (3d Cir. 02–2500, filed

05/30/2002, judgment 06/16/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Criminal cocaine conviction affirmed on the granting of an Anders motion.

Related case: United States v. Morgan (3d Cir. 02–

2530, filed 06/06/2002, judgment 06/16/2003)

(consolidated appeal filed pro se).

Anders brief: The defendant’s counsel’s 2,551-

word Anders brief cites six published opinions

(three by the U.S. Supreme Court, one by the

Third Circuit, and two by other circuits).

Appellee’s brief: The government’s 2,235-word

appellee brief cites seven published opinions (four

by the U.S. Supreme Court, two by the Third Circuit, and one by another circuit).

Opinion: (2) The court’s unpublished 679-word

signed opinion, United States v. Morgan, 69 Fed.

Appx. 516, 2003 WL 21401747 (3d Cir. 2003) (three

headnotes), cites four published opinions (two by

the U.S. Supreme Court and two by the Third Circuit). According to Westlaw (03/21/2005), the

court’s opinion has been cited in one secondary

source.

Silver Leaf, LLC v. Tasty Fries, Inc. (3d Cir. 02–

2767, filed 06/27/2002, judgment 10/30/2002).

Appeal from: District of New Jersey.

What happened: Unsuccessful appeal of the denial of a preliminary injunction in a dispute over
Citing Unpublished Opinions in Federal Appeals

163

intellectual property rights in a french-fry vending machine.

Appellant’s brief: The distributor’s 6,024-word

appellant brief cites 19 published opinions (five

by the Third Circuit, two by other circuits, three

by the District of New Jersey, four by districts in

other circuits, two by New York’s court of appeals, two by New York’s appellate division, and

one by Colorado’s court of appeals), two unpublished opinions by a district in another circuit, and

one treatise.

The brief includes an unpublished opinion by

the Southern District of New York in a string of

three citations, including two published opinions

by New York’s appellate division, headed by “see,

e.g.,” to support the statement, “Accordingly, bad

faith on the part of the party seeking to enforce an

exculpatory clause will invalidate such a clause.”

(Page 14.)

The brief follows this string citation with a citation to another unpublished opinion by the

Southern District of New York in a footnote

headed by “see also.” (Page 15, note 6.)

Appellee’s brief: The manufacturer’s 8,171-word

appellee brief cites 29 published opinions (two by

the U.S. Supreme Court, nine by the Third Circuit,

two by other circuits, two by the District of New

Jersey, and 14 by New York courts—eight by the

court of appeals, four by the supreme court’s appellate division, one by the supreme court’s appellate term, and one by the supreme court’s special term), one related case in New Jersey’s superior court, and one treatise.

Appellant’s reply brief: The distributor’s 3,306-

word reply brief cites 15 published opinions (six

by the Third Circuit, two by other circuits, one by

the District of New Jersey, one by a district in another circuit, and five by New York courts—three

by the court of appeals and two by the supreme

court’s appellate division).

Opinion: (2) The court’s unpublished 2,695-

word signed opinion, Silver Leaf, LLC v. Tasty

Fries, Inc., 51 Fed. Appx. 366, 2002 WL 31424691

(3d Cir. 2002) (no headnotes), cites 20 published

opinions (one by the U.S. Supreme Court, 14 by

the Third Circuit, three by New York’s court of

appeals, one by New York’s appellate division,

and one by New York’s appellate term). According to Westlaw (03/21/2005), the court’s opinion

has been cited in one trial brief in a case from the

District of New Jersey, one trial brief in another

Third Circuit district, and one secondary source.

McGinnis v. Ohio Casualty Insurance Co. (3d Cir.

02–2802, filed 06/28/2002, judgment 05/23/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Unsuccessful appeal of a jury

verdict in favor of an insurance company where

the claimant claimed damage to his furniture

store from a boulder dislodged by hurricane

Floyd.

Appellant’s brief: The insured’s 4,107-word appellant brief cites seven published opinions (five

by the Third Circuit, one by a Third Circuit district, and one by Pennsylvania’s superior court).

Appellee’s brief: The insurance company’s 5,804-

word appellee brief cites six published opinions

(four by the Eastern District of Pennsylvania, one

by another Third Circuit district, and one by

Pennsylvania’s superior court), one unpublished

opinion by the Eastern District of Pennsylvania,

and the Restatement (Second) of Torts.

The brief cites three opinions by the Eastern

District of Pennsylvania to support the statement,

“It is clear that in the Eastern District, the Court is

the gatekeeper in bad faith.” (Page 20.) Two of

these opinions are published, and the first cited is

unpublished.

Opinion: (2) The court’s unpublished 1,056-

word signed opinion, McGinnis v. Ohio Casualty

Insurance Co., 67 Fed. Appx. 127, 2003 WL

21205882 (3d Cir. 2003) (two headnotes), cites no

opinions. According to Westlaw (03/21/2005), the

court’s opinion has been cited in two secondary

sources.

United States v. Humphries (3d Cir. 02–2870,

filed 07/10/2002, judgment 08/06/2002).

Appeal from: Eastern District of Pennsylvania.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

W.V. Realty Inc. v. Northern Insurance Company

of New York (3d Cir. 02–2910, filed 07/15/2002,

judgment 06/27/2003).

Appeal from: Middle District of Pennsylvania.

What happened: A jury award based on a finding of insurance bad faith overturned, because

irrelevant and prejudicial evidence was admitted

at trial. The court held that discovery misconduct

in a bad-faith case was not necessarily evidence of

insurance bad faith.

Appellant’s brief: The insurance company’s

13,929-word appellant brief cites 33 published

opinions (three by the U.S. Supreme Court, eight

by the Third Circuit, two by other circuits, one by

the Middle District of Pennsylvania, 11 by another

Third Circuit district, one by a district in another

circuit, four by Pennsylvania’s supreme court, and

three by Pennsylvania’s superior court), four un-
Citing Unpublished Opinions in Federal Appeals

164

published opinions by a Third Circuit district, one

related case that was the subject of a discovery

dispute, and one treatise.

Two unpublished opinions by the Eastern District of Pennsylvania and a published opinion by

Pennsylvania’s superior court are cited to support

the statement that the state’s bad-faith statute

clearly mandates that certain issues be tried without a jury. (Page 53.)

The brief quotes an unpublished opinion by

the Eastern District of Pennsylvania, Slater v. Liberty Mutual Insurance Co., 1999 WL 178367 (E.D.

Pa. 1999), as stating “the alleged bad faith in conducting discovery was ‘independent of the contract of insurance,’ and did not arise from the parties’ ‘insurer-insured relationship’ but from their

‘relationship as litigants.’” (Page 46.) Another unpublished opinion by the Eastern District of Pennsylvania is cited to support the statement, “Evidence of other bad faith claims is inadmissible

and prejudicial as it seeks to prove a broad pattern of improper conduct, when a plaintiff’s claim

must properly be limited to the conduct in processing his particular claim.” (Page 56.)

Appellee’s brief: The insured’s 10,750-word appellee brief cites 36 published opinions (two by

the U.S. Supreme Court, six by the Third Circuit,

one by another circuit, three by the Middle District of Pennsylvania, seven by other Third Circuit

districts, eight by Pennsylvania’s supreme court,

three by Pennsylvania’s superior court, one by

Pennsylvania’s commonwealth court, one by Arizona’s supreme court, two by California’s court of

appeal, one by Indiana’s court of appeals, and one

by Missouri’s court of appeals), one related case

that was the subject of the discovery dispute, and

the Restatement (Second) of Torts.

Appellant’s reply brief: The insurance company’s

5,341-word reply brief cites 15 published opinions

(five by the Third Circuit, one by another circuit,

one by the Middle District of Pennsylvania, two

by another Third Circuit district, four by Pennsylvania’s supreme court, and two by Pennsylvania’s

superior court), one unpublished opinion by a

Third Circuit district, and one treatise.

The insurance company’s reply brief cites an

unpublished opinion by the Eastern District of

Pennsylvania that is also cited in the insurance

company’s opening brief, Slater v. Liberty Mutual

Insurance Co., 1999 WL 178367 (E.D. Pa. 1999). To

rebut an assertion by the insured that the insurance company’s opening brief misstates the holding of a published opinion by Pennsylvania’s

court of appeals, the insurance company quotes

the Pennsylvania opinion extensively, and the

quotation includes a citation by the Pennsylvania

superior court to the unpublished opinion by the

Eastern District of Pennsylvania. (Page 11.) The

brief also states that a published opinion by the

Middle District of Pennsylvania cites Slater with

approval. (Page 13.)

Opinion: (3) The court’s published 5,880-word

opinion, W.V. Realty Inc. v. Northern Insurance

Company of New York, 334 F.3d 306 (3d Cir. 2003)

(11 headnotes), cites 19 published opinions (eight

by the Third Circuit, three by other circuits, one

by the Middle District of Pennsylvania, one by

another Third Circuit district, one by Pennsylvania’s supreme court, four by Pennsylvania’s superior court, and one by Pennsylvania’s court of

common pleas), three unpublished opinions by a

Third Circuit district, one treatise, Black’s Law Dictionary, and the Restatement (Second) of Torts.

The opinion cites two unpublished opinions by

the Eastern District of Pennsylvania and one published opinion by the Middle District of Pennsylvania, with the citations headed by “see, e.g.,” to

support the following statement: “On the other

hand, those cases in which courts have permitted

bad faith claims to go forward based on conduct

which occurred after the insured filed suit all involved something beyond a discovery violation,

suggesting that the conduct was intended to

evade the insurer’s obligations under the insurance contract.” (Page 11, 334 F.3d at 314.)

The court’s opinion cites in two places an unpublished opinion by the Eastern District of Pennsylvania that is cited in the insurance company’s

briefs, Slater v. Liberty Mutual Insurance Co., 1999

WL 178367 (E.D. Pa. 1999). First, the opinion cites

the published opinion by Pennsylvania’s superior

court that quotes the district court opinion. (Page

10, 334 F.3d at 313.) Second, the opinion cites the

unpublished district court opinion, along with a

published opinion by Pennsylvania’s court of

common pleas, headed by “see also,” following the

discussion of a published opinion by Pennsylvania’s superior court amplifying the following

statement: “In those cases in which nothing more

than discovery violations were alleged, courts

have declined to find bad faith.” (Pages 10–11, 334

F.3d at 313–14.)

According to Westlaw (03/21/2005), the

court’s opinion has been cited in six Third Circuit

opinions (four published and two unpublished),

seven opinions by a Third Circuit district (one

published and six unpublished), seven secondary

sources, four appellate briefs in two cases in

Pennsylvania’s superior court, one appellate brief

in Texas’s supreme court, and five trial court
Citing Unpublished Opinions in Federal Appeals

165

briefs in four cases (four in the Middle District of

Pennsylvania and one trial court brief in a case in

another Third Circuit district).

United States v. Rivera (3d Cir. 02–2919, filed

07/12/2002, judgment 05/30/2003).

Appeal from: Middle District of Pennsylvania.

What happened: Unsuccessful appeal of a criminal sentence for possession of a firearm in connection with another felony offense—possession of

heroin with intent to distribute.

Appellant’s brief: The defendant’s 1,342-word

appellant brief cites eight published opinions (one

by the U.S. Supreme Court, five by the Third Circuit, and two by other circuits).

Appellee’s brief: The government’s 1,636-word

brief cites two published Third Circuit opinions.

Opinion: (2) The court’s unpublished 504-word

signed opinion, United States v. Rivera, 65 Fed.

Appx. 867, 2003 WL 21246541 (3d Cir. 2003) (one

headnote), cites one published Third Circuit opinion. According to Westlaw (03/21/2005), the

court’s opinion has not been cited elsewhere.

H.C. v. Lewis (3d Cir. 02–2931, filed 07/18/2002,

judgment 05/09/2003).

Appeal from: District of New Jersey.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Douglas v. Gillis (3d Cir. 02–2936, filed

07/12/2002, judgment 01/24/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Certificate of appealability denied.

Related case: Douglas v. Gillis, (3d Cir. 02–2071,

filed 04/24/2002, judgment 01/24/2003) (certificate of appealability denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

Do Little Corp. v. Township of Bristol (3d Cir.

02–2971, filed 07/19/2002, judgment 04/25/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Unsuccessful appeal of the

dismissal as time-barred of a complaint alleging

that a township breached an agreement to sell

property to the plaintiff.

Related case: Do Little Corp. v. Township of Bristol

(3d Cir. 02–3008, filed 07/23/2002, judgment

04/25/2003) (consolidated appeal resolved by

same opinion as selected case).

Appellant’s brief: The plaintiff’s 4,421-word appellant brief cites 11 published opinions (two by

the U.S. Supreme Court and nine by the Third

Circuit).

Appellee’s brief: The township’s 4,766-word appellee brief cites 14 published opinions (five by

the U.S. Supreme Court, seven by the Third Circuit, one by another circuit, and one by a Third

Circuit district).

Opinion: (2) The court’s unpublished 818-word

signed opinion, Do Little Corp. v. Bristol, 65 Fed.

Appx. 825, 2003 WL 1950049 (3d Cir. 2003) (two

headnotes), cites three published Third Circuit

opinions. According to Westlaw (03/21/2005), the

court’s opinion has not been cited elsewhere.

Signator Investors v. Olick (3d Cir. 02–3437, filed

09/06/2002, judgment 11/07/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Unsuccessful pro se appeal of

an injunction against a malicious prosecution

claim in a securities and bankruptcy action.

Appellee’s brief: The investment company’s

5,351-word appellee brief cites 17 published opinions (one by the U.S. Supreme Court; 11 by the

Third Circuit, including an opinion in a related

appeal; two by other circuits; two by Pennsylvania’s supreme court; and one by Pennsylvania’s

superior court); six unpublished Third Circuit

opinions, including five in related appeals; and

one unpublished order in a related district court

case.

In a footnote, the brief quotes an unpublished

Third Circuit opinion as saying that “on the basis

of the existing state of Pennsylvania law, . . . the

U.S. Supreme Court would not create a distinct

cause of action for the spoliation of evidence

brought outside an existing personal injury or

products liability action.” (Page 5, note 4.) The

brief reiterates the court’s determination later in

the main text: “Additionally, this Court has recently concluded that there is no separate tort under Pennsylvania law for ‘spoliation’ [citation].”

(Page 14.)

Opinion: (2) The court’s unpublished 625-word

per curiam opinion, tabled at Signator Investors v.

Olick, 85 Fed. Appx. 874, 2003 WL 22881726 (3d

Cir. 2003), cites two published opinions (one opinion in a related appeal by the Third Circuit and

one opinion by another circuit) and one unpublished opinion in a related Third Circuit appeal.

According to Westlaw (11/06/2004), the court’s

opinion has not been cited elsewhere.

Wise v. DA Philadelphia City (3d Cir. 02–3466,

filed 09/10/2002, judgment 12/26/2002).

Appeal from: Eastern District of Pennsylvania
Citing Unpublished Opinions in Federal Appeals

166

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 111-word docket

judgment cites two published opinions (one by

the U.S. Supreme Court and one by the Third Circuit).

United States v. Namey (3d Cir. 02–3491, filed

09/13/2002, judgment 08/05/2003).

Appeal from: Western District of Pennsylvania.

What happened: Unsuccessful appeal of the denial of habeas corpus relief for ineffective assistance of counsel.

Related case: The selected case was consolidated

with United States v. Namey (3d Cir. 02–3327, filed

08/28/2002, judgment 08/05/2003) (unsuccessful

appeal of refused sentencing downward departure).

Appellant’s brief: The defendant’s 6,706-word

appellant brief cites 11 published opinions (five

by the U.S. Supreme Court, five by the Third Circuit, and one by a Third Circuit district).

Appellee’s brief: The government’s 7,466-word

appellee brief cites 23 published opinions (four by

the U.S. Supreme Court, 13 by the Third Circuit,

five by other circuits, and one by a district in another circuit).

Appellant’s reply brief: The defendant’s 3,720-

word reply brief cites seven published opinions

(one by the U.S. Supreme Court, five by the Third

Circuit, and one by a Third Circuit district).

Opinion: (2) The court’s unpublished 803-word

signed opinion, United States v. Namey, 71 Fed.

Appx. 947, 2003 WL 21796721 (3d Cir. 2003) (two

headnotes), cites three published opinions (one by

the U.S. Supreme Court and two by the Third Circuit). According to Westlaw (03/21/2005), the

court’s opinion has been cited in three secondary

sources.

Nunes v. Attorney General (3d Cir. 02–3546, filed

09/16/2002, judgment 04/08/2004).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful pro se asylum

appeal.

Related case: Nunes v. Attorney General (3d Cir.

03–2419, filed 05/14/2003, judgment 01/06/2004)

(unsuccessful appeal of the denial of habeas corpus relief for ineffective assistance of counsel).

Respondent’s brief: The government’s 4,586-

word respondent brief cites 12 published opinions

(two by the U.S. Supreme Court, five by the Third

Circuit, and five by other circuits).

Opinion: (2) The court’s unpublished 1,700-

word per curiam opinion, tabled at Nunes v. Ashcroft, 90 Fed. Appx. 436, 2004 WL 228691 (3d Cir.

2004), cites three published opinions (two by the

Third Circuit and one by another circuit), one unpublished Third Circuit opinion resolving the related appeal, and one Web reference to a State

Department report. According to Westlaw

(03/21/2005), the court’s opinion has not been

cited elsewhere.

In re Vega (3d Cir. 02–3681, filed 09/27/2002,

judgment 10/25/2002).

Appeal from: Eastern District of Pennsylvania.

What happened: Permission to file a successive

habeas corpus petition denied.

Opinion: (1) The court’s 236-word docket judgment cites two published opinions (one by the

U.S. Supreme Court and one by the Third Circuit).

Cuffari v. S-B Power Tool Co. (3d Cir. 02–3763,

filed 10/07/2002, judgment 11/07/2002).

Appeal from: District of New Jersey.

What happened: Unsuccessful appeal of the exclusion of an expert witness in a product liability

case.

Appellant’s brief: The plaintiffs’ 2,439-word appellant brief cites six published opinions (one by

the U.S. Supreme Court, one by the District of

New Jersey, one by a Third Circuit district, two by

New Jersey’s supreme court, and one by New Jersey’s appellate division).

Appellee’s brief: The manufacturer’s 4,061-word

appellee brief cites six published opinions (two by

the U.S. Supreme Court and four by the Third

Circuit).

Opinion: (2) The court’s unpublished 967-word

signed opinion, Cuffari v. S-B Power Tool Co., 80

Fed. Appx. 749, 2003 WL 22520411 (3d Cir. 2003)

(one headnote), cites four published opinions (two

by the U.S. Supreme Court and two by the Third

Circuit). According to Westlaw (03/21/2005), the

court’s opinion has been cited in one secondary

source and one brief in a district court case in the

Third Circuit.

In re Wilson (3d Cir. 02–3776, filed 10/08/2002,

judgment 11/13/2002).

Appeal from: District of Delaware.

What happened: Pro se petition for a writ of

mandamus directing the district court to rule on

in forma pauperis applications denied as moot

upon the district court’s granting the applications.

Opinion: (2) The court’s unpublished 176-word

per curiam opinion, tabled at In re Wilson, 52 Fed.

Appx. 190, 2002 WL 31758426 (3d Cir. 2002), cites

three unpublished district court orders by the District of Delaware granting the petitioner’s in

forma pauperis applications. According to West-
Citing Unpublished Opinions in Federal Appeals

167

law (03/21/2005), the court’s opinion has not

been cited elsewhere.

United States v. McFadden (3d Cir. 02–3778, filed

10/08/2002, judgment 09/10/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 118-word docket judgment cites two published opinions (one by the

U.S. Supreme Court and one by the Third Circuit).

Rivas v. City of Passaic (3d Cir. 02–3875, filed

10/17/2002, judgment 04/26/2004).

Appeal from: District of New Jersey.

What happened: Unsuccessful appeal of the denial of summary judgment to emergency medical

technicians who responded to a 911 call for a man

having a seizure and responded to his erratic behavior by calling the police, after which the man

died. In the same opinion, the court affirmed the

denial of summary judgment to the police officers

in a consolidated appeal.

Related case: Rivas v. City of Passaic (3d Cir. 02–

3916, filed 10/22/2002, judgment 04/26/2004)

(unsuccessful appeal by police officers).

Appellant’s brief: The technicians’ 13,316-word

appellant brief cites 25 published opinions (nine

by the U.S. Supreme Court, 13 by the Third Circuit, one by another circuit, one by the District of

New Jersey, and one by another Third Circuit district) and one unpublished Third Circuit opinion.

The brief cites an unpublished Third Circuit

opinion in its first of four arguments. The argument asserts in part that “the court below failed to

comb the record and Local Rule 56.1 statement.”

(Page 36.) The cited unpublished opinion is

quoted concerning “the difficulty we have had in

parsing what precisely is alleged against each appellant” as stating in part, “The parties persist in

the practice of arguing through conclusory statements supported by generalized reference to the

extensive statements of fact with which they each

open their briefs.” (Page 41.)

Appellee’s brief: The plaintiffs’ 14,081-word appellee brief cites 29 published opinions (10 by the

U.S. Supreme Court, 13 by the Third Circuit, two

by other circuits, two by the District of New Jersey, one by another Third Circuit district, and one

by a district in another circuit) and two unpublished opinions (one by a Third Circuit district

and one by a district in another circuit).

The brief cites an unpublished opinion by the

Eastern District of Pennsylvania as holding that

“it was foreseeable that a 911 call misdirected to a

private ambulance company rather than the

authorized Fire Department Rescue units appropriately staffed to respond to such emergencies

would result in serious harm or death.” (Pages

53–54.)

The other unpublished opinion cited is by the

Northern District of Illinois. The brief cites the

opinion as holding that the “plaintiff had a valid

claim against paramedics for failure to intervene

to protect decedent’s safety when the police

placed decedent face down in the street, handcuffed him, choked him and inflicted additional

injuries on him” and in part quotes the opinion as

stating, “In effect the firefighters and paramedics

contend that they can be present on a scene in

their role as employees of the District watching

other State actors cause the death of an individual

and yet stand by idle, ‘because it’s not their job.’

District Judge Bucklo rejected a similar argument

by paramedics of the City of Chicago . . . calling it

‘an argument of breathtaking cynicism.’” (Page

41.)

Appellant’s reply brief: The technicians’ 6,989-

word reply brief cites 45 published opinions (14

by the U.S. Supreme Court, 13 by the Third Circuit, nine by other circuits, two by the District of

New Jersey, six by other Third Circuit districts,

and one by a district in another circuit), one unpublished opinion by another circuit, and the Restatement (Second) of Torts.

The brief includes an unpublished opinion by

the Sixth Circuit in a string of two citations

headed by “see, e.g.,” to support the statement,

“Consistent with the Third Circuit’s holding in

Anela [v. City of Wildwood, 790 F.2d 1063 (3d Cir.

1986)], other courts have granted summary judgment for defendants in § 1983 cases where the

plaintiff could not identify the accountable state

actors and the circumstantial evidence of said actors’ identities was too attenuated.” (Page 21.) The

opinion is cited as “affirming summary judgment

to § 1983 excessive force claim arising out of plaintiff’s arrest where plaintiff was unable to identify

officer who allegedly pushed him into police car.”

(Id.) The other opinion cited in the string is a published opinion by the Tenth Circuit.

Opinion: (3) The court’s published 11,595-word

signed opinion and partial concurrence, Rivas v.

City of Passaic, 365 F.3d 181 (3d Cir. 2004) (17

headnotes), cites 37 published opinions (15 by the

U.S. Supreme Court, 18 by the Third Circuit, and

four by other circuits). According to Westlaw

(03/21/2005), the court’s opinion has been cited

in two unpublished opinions by the Third Circuit,

three unpublished opinions by Third Circuit dis-
Citing Unpublished Opinions in Federal Appeals

168

tricts, seven secondary sources, one brief in a U.S.

Supreme Court case, and five trial briefs in five

Third Circuit district cases.

United States v. Magana-Gomez (3d Cir. 02–3885,

filed 10/21/2002, judgment 03/24/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Young v. Pennsylvania Rural Electric Association

(3d Cir. 02–3946, filed 10/25/2002, judgment

11/17/2003).

Appeal from: Middle District of Pennsylvania.

What happened: Unsuccessful ERISA appeal of

summary judgment in favor of an employer in an

action for severance benefits.

Appellant’s brief: The employee’s 8,236-word

appellant brief cites 19 published opinions (one by

the U.S. Supreme Court, 16 by the Third Circuit,

one by another circuit, and one by a Third Circuit

district).

Appellee’s brief: The employer’s 14,966-word

appellee brief cites 29 published opinions (two by

the U.S. Supreme Court, 20 by the Third Circuit,

three by other circuits, one by the Middle District

of Pennsylvania, one by another Third Circuit district, and two by districts in other circuits), one

unpublished Third Circuit opinion, and the Restatement (Second) of Trusts.

The brief cites three Third Circuit opinions in a

string to support the statement, “’Serious consideration’ of changes in plan benefits is sufficient to

trigger a fiduciary duty to provide complete and

truthful information about such changes in response to an employee’s inquiry.” (Page 24.) The

first opinion in the string is unpublished; the

other two are published.

Appellant’s reply brief: The employee’s 1,871-

word reply brief cites five published Third Circuit

opinions.

Opinion: (2) The court’s unpublished 2,147-

word signed opinion, Young v. Pennsylvania Rural

Electric Ass’n, 80 Fed. Appx. 785, 2003 WL

22701472 (3d Cir. 2003) (two headnotes), cites

eight published Third Circuit opinions. According

to Westlaw (03/21/2005), the court’s opinion has

been cited in five secondary sources.

Beckman v. Integrated Systems International (3d

Cir. 02–4008, filed 10/30/2002, judgment

03/11/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Civil appeal voluntarily dismissed without prejudice.

Opinion: (1) The court’s docket judgment cites

no opinions.

Brown v. American Home Products Corp. (3d Cir.

02–4074, filed 11/07/2002, judgment 03/20/2005).

Appeal from: Eastern District of Pennsylvania.

What happened: In multidistrict litigation over

fen-phen diet drugs, plaintiffs’ attorneys unsuccessfully appealed an award of $80 million in attorney fees to a “Plaintiffs’ Management Committee,” claiming that appellants did not rely on the

committee’s efforts. The court concluded that the

preliminary fee allocation was not a final appealable order.

Related cases: Part of multidistrict litigation

known as In re Diet Drugs (MDL 1203). Consolidated appeals resolved by the same opinion include Brown v. American Home Products Corp. (3d

Cir. 03–2627, filed 06/02/2003, judgment

03/20/2005), Brown v. American Home Products

Corp. (3d Cir. 03–2695, filed 06/10/2003, judgment 03/20/2005), Brown v. American Home Products Corp. (3d Cir. 03–2766, filed 06/20/2003,

judgment 03/20/2005), Gooch-Kiel v. American

Home Products Corp. (3d Cir. 02–4020, filed

10/31/2002, judgment 03/20/2005), Brown v.

American Home Products Corp. (3d Cir. 02–4021,

filed 10/31/2002, judgment 03/20/2005), and

Brown v. American Home Products Corp. (3d Cir. 03–

4830, filed 12/29/2003, judgment 03/20/2005).

Related appeals dismissed for lack of prosecution include Brown v. American Home Products

Corp. (3d Cir. 03–2763, filed 06/20/2003, judgment 03/30/2004), Brown v. American Home Products Corp. (3d Cir. 03–2764, filed 06/20/2003,

judgment 03/30/2004), and Brown v. American

Home Products Corp. (3d Cir. 03–2765, filed

06/20/2003, judgment 03/30/2004).

Appellant’s brief: The appellants’ 10,154-word

brief cites 30 published opinions (five by the U.S.

Supreme Court; eight by the Third Circuit, including one by an earlier phase of this case; eight by

other circuits; three by the Eastern District of

Pennsylvania; one by another Third Circuit district; two by districts in other circuits; one by Tennessee’s supreme court; one by California’s court

of appeal; and one by Indiana’s court of appeals),

the district court filing and two unpublished orders in this case, seven related state trial court

cases (one in North Dakota, two in Oregon, two in

South Dakota, and two in Texas), the Restatement

(Second) of Contracts, and the Restatement of Restitution.

Appellee’s brief: The Committee’s 14,753-word

appellee brief, which concerns the selected appeal

and 02–4020, cites 44 published opinions (nine by
Citing Unpublished Opinions in Federal Appeals

169

the U.S. Supreme Court; 17 by the Third Circuit,

including one from an earlier phase of this case;

12 by other circuits; one by the Eastern District of

Pennsylvania; four by districts in other circuits;

and one by Alabama’s supreme court), three

unpublished opinions (two by the Eastern District

of Pennsylvania, including one by this case, and

one by a bankruptcy court in another circuit), one

related Texas trial court case, four law review articles, two Federal Judicial Center publications, and

one internet Web page.

The citation to an unpublished opinion by the

Eastern District of Pennsylvania in another case is

included in a string of citations supporting the

statement, “It is by now an unassailable proposition that a federal district court presiding over a

mass tort MDL may properly award a fee to the

plaintiffs’ management structure appointed by it,

payable out of the fees derived from the representation of the individual litigants whose cases are

subject to coordinated pretrial proceedings in the

MDL transferee court.” (Pages 26–27.) The string

includes citations to published opinions by four

circuits, two districts within those circuits, and the

Federal Judicial Center’s Manual for Complex Litigation, Third.

The citation to an unpublished District of

Colorado bankruptcy court opinion is included in

a string of citations, headed by “see, e.g.,” also including three published Third Circuit opinions,

with each citation including an explanatory parenthetical. The citations support the statement,

“This material [referring to material assembled by

the committee for the benefit of other plaintiffs’

attorneys] is classic ‘attorney work product’ entitled to protection against compelled disclosure to

any person who does not provide fair compensation for the effort involved in creating it.” (Page

57.)

Appellant’s reply brief: The appellant’s 7,210-

word reply brief cites 29 published opinions

(seven by the U.S. Supreme Court, five by the

Third Circuit, nine by other circuits, two by districts in other circuits, and one by each of six

states’ supreme courts—California’s, Massachusetts’s, New Jersey’s, Ohio’s, Oregon’s, and

Texas’s), four trial court cases (two in Oregon and

two in Texas), one Federal Judicial Center manual,

the Restatement (Second) of Contracts, the Restatement of Restitution, and one internet Web page.

Opinion: (3) The court’s 16,512-word signed

opinion and concurrence, In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, 401 F.3d 143 (3d Cir. 2005) (10

headnotes), cites 69 published opinions (13 by the

U.S. Supreme Court; 28 by the Third Circuit, including three in related appeals; 23 by other circuits; one by the Eastern District of Pennsylvania;

and four by districts in other circuits), one unpublished opinion by the Eastern District of Pennsylvania, and one law review article. According to

Westlaw (04/06/2005), the court’s opinion has not

been cited elsewhere.

The concurrence cites six unpublished district

court opinions, including an unpublished opinion

and a published opinion by the Eastern District of

Pennsylvania, to support the statement, “Perhaps

implicitly acknowledging the lack of detailed

guidance from our Court, Appellees cite a number

of decisions in which courts have delegated the

task of allocating fees among counsel to lead

counsel or have relied on an agreement reached

by counsel.” (401 F.3d at 168.)

Forsythe v. Walters (3d Cir. 02–4079, filed

11/06/2002, judgment 06/20/2003).

Appeal from: Western District of Pennsylvania.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 162-word docket judgment cites three published opinions (one by the

U.S. Supreme Court and two by the Third Circuit)

and the district court’s unpublished opinion in

this case.

Northfield Insurance Co. v. Pantages (3d Cir. 02–

4084, filed 11/08/2002, judgment 06/06/2003).

Appeal from: Middle District of Pennsylvania.

What happened: Civil appeal dismissed by

stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Douglas (3d Cir. 02–4103, filed

11/07/2002, judgment 06/16/2003).

Appeal from: District of New Jersey.

What happened: Conviction for illegally entering the United States after conviction for an aggravated felony affirmed on the granting of an

Anders motion.

Anders brief: The appellant counsel’s 2,271-

word Anders brief cites eight published opinions

(two by the U.S. Supreme Court, five by the Third

Circuit, and one by another circuit).

Appellee’s brief: The government’s 2,012-word

appellee brief cites 11 published opinions (four by

the U.S. Supreme Court, four by the Third Circuit,

and three by another circuit) and two unpublished Third Circuit opinions.

To support a statement that the court has disposed of appeals with Anders motions by dismissal or affirmance, the brief begins a footnote
Citing Unpublished Opinions in Federal Appeals

170

with a string of three Third Circuit opinions,

headed by “e.g.” (Page 8, note 4.) The first opinion

cited is a published opinion and the other two are

unpublished opinions.

Opinion: (2) The court’s unpublished 931-word

signed opinion, United States v. Douglas, 67 Fed.

Appx. 733, 2003 WL 21380555 (3d Cir. 2003) (three

headnotes), cites one U.S. Supreme Court opinion.

According to Westlaw (03/21/2005), the court’s

opinion has not been cited elsewhere.

Spada v. Flemming Co. (3d Cir. 02–4155, filed

11/18/2002, judgment 09/15/2005).

Appeal from: Eastern District of Pennsylvania.

What happened: Appeal of the remand of a civil

action following the amendment of the complaint

to add a non-diverse defendant initially stayed by

the appellant’s bankruptcy and then voluntarily

dismissed.

Appellant’s brief: The appellant’s 4,100-word

brief cites 11 published opinions (one by the U.S.

Supreme Court, four by the Third Circuit, five by

other circuits, and one by the Eastern District of

Pennsylvania), two related cases in Pennsylvania’s court of common pleas, and one treatise.

Opinion: (1) The court’s docket judgment cites

no opinions.

Ogundipe v. Attorney General (3d Cir. 02–4262,

filed 11/21/2002, judgment 09/21/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Interlocutory appeal dismissed

as moot in deportation case.

Opinion: (1) The court’s docket judgment cites

no opinions.

Caballero v. Meyers (3d Cir. 02–4263, filed

11/22/2002, judgment 07/31/2003).

Appeal from: Middle District of Pennsylvania.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 106-word docket

judgment cites one U.S. Supreme Court opinion.

Spillane v. Hendricks (3d Cir. 02–4311, filed

11/27/2002, judgment 01/08/2004).

Appeal from: District of New Jersey.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s 107-word docket judgment cites one U.S. Supreme Court opinion.

Lamacchia v. Secretary of Defense (3d Cir. 02–

4321, filed 11/29/2002, judgment 05/06/2003).

Appeal from: Eastern District of Pennsylvania.

What happened: Civil appeal dismissed for failure to file a brief.

Opinion: (1) The court’s docket judgment cites

no opinions.

Terrell v. Hawk (3d Cir. 02–4462, filed 12/16/2002,

judgment 03/09/2004).

Appeal from: Middle District of Pennsylvania.

What happened: Dismissed pro se Bivens action

by a prisoner whose art supplies were destroyed

remanded for a determination of whether the

claims were valid under the Federal Tort Claims

Act.

Appellee’s brief: The government’s 3,952-word

appellee brief cites 46 published opinions (14 by

the U.S. Supreme Court, 20 by the Third Circuit,

three by other circuits, three by the Middle District of Pennsylvania, two by other Third Circuit

districts, one by Pennsylvania’s supreme court,

and three by Pennsylvania’s superior court).

Opinion: (2) The court’s unpublished 1,177-

word per curiam opinion, tabled at Terrell v.

Hawk, 94 Fed. Appx. 970, 2004 WL 736949 (3d Cir.

2004), cites 14 published opinions (six by the U.S.

Supreme Court, one by the Third Circuit, and

seven by other circuits). According to Westlaw

(03/21/2005), the court’s opinion has not been

cited elsewhere.

Jung v. Attorney General (3d Cir. 02–4469, filed

12/13/2002, judgment 03/02/2004).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal by a native of South Korea who claimed she

wanted to stay in the United States to marry her

fiancé.

Petitioner’s brief: The petitioner’s 5,523-word

brief cites 24 published court opinions (16 by the

U.S. Supreme Court, two by the Third Circuit, five

by other circuits, and one by a Third Circuit district) and 14 published decisions of the Board of

Immigration Appeals. Seven of these citations

appear to be in two pages of the brief that are

missing from the copies filed with the court. (The

length of the brief without missing pages was

computed by adding twice the average number of

words per page to the number of words counted

in the pages filed.)

Respondent’s brief: The government’s 4,406-

word respondent brief cites 17 published court

opinions (six by the U.S. Supreme Court, four by

the Third Circuit, six by other circuits, and one by

a Third Circuit district) and six published decisions of the Board of Immigration Appeals.

Opinion: (2) The court’s unpublished 863-word

per curiam opinion, Jung v. Ashcroft, 91 Fed.

Appx. 221, 2004 WL 413231 (3d Cir. 2004) (one

headnote), cites two published court opinions
Citing Unpublished Opinions in Federal Appeals

171

(one by the U.S. Supreme Court and one by the

Third Circuit) and three published decisions of

the Board of Immigration Appeals. According to

Westlaw (03/21/2005), the court’s opinion has not

been cited elsewhere.

Rice v. Commissioner of Social Security (3d Cir.

02–4529, filed 12/23/2002, judgment 07/10/2003).

Appeal from: Middle District of Pennsylvania.

What happened: Unsuccessful pro se appeal of

the dismissal of a Social Security complaint for

failure to follow court orders.

Appellee’s brief: The government’s 3,887-word

appellee brief cites 10 published opinions (one by

the U.S. Supreme Court and nine by the Third

Circuit) and one unpublished order by the Middle

District of Pennsylvania in this case.

Opinion: (2) The court’s unpublished 1,728-

word per curiam opinion, tabled at Rice v.

Barnhart, 80 Fed. Appx. 287, 2003 WL 21840681

(3d Cir. 2003), cites four published opinions (three

by the Third Circuit and one by another circuit).

According to Westlaw (03/21/2005), the court’s

opinion has not been cited elsewhere.

Doe v. Groody (3d Cir. 02–4532, filed 12/24/2002,

judgment 03/19/2004).

Appeal from: Middle District of Pennsylvania.

What happened: Unsuccessful appeal of the denial of qualified immunity to police officers who

searched occupants of a house where the warrant

specified only a different occupant and the affidavit supporting the warrant requested a warrant to

search all occupants.

Appellant’s brief: The police officers’ 4,801-word

appellant brief cites 26 published opinions (13 by

the U.S. Supreme Court, five by the Third Circuit,

two by Pennsylvania’s supreme court, four by

Pennsylvania’s superior court, one by Pennsylvania’s court of common pleas, and one by Massachusetts’s supreme judicial court).

Appellee’s brief: The plaintiffs’ 5,892-word appellee brief cites 17 published opinions (five by

the U.S. Supreme Court, four by the Third Circuit,

two by other circuits, two by Pennsylvania’s supreme court, and four by Pennsylvania’s superior

court).

Opinion: (3) The court’s published 8,178-word

signed opinion and dissent, Doe v. Groody, 361

F.3d 232 (3d Cir. 2004), cites 33 published opinions (16 by the U.S. Supreme Court, nine by the

Third Circuit, five by other circuits, two by Pennsylvania’s supreme court, and one by Pennsylvania’s superior court). According to Westlaw

(03/21/2005), the court’s opinion has been cited

in one published Third Circuit opinion, five opinions by Third Circuit districts (one published and

four unpublished), two opinions by other districts

(one published and one unpublished), seven secondary sources, four appellate briefs in two U.S.

Supreme Court cases, one appellate brief in a case

in a Massachusetts appeals court, and two trial

briefs in two Middle District of Pennsylvania

cases.

4. Fourth Circuit85

The court of appeals for the Fourth Circuit

disfavors citation to its unpublished opinions

in unrelated cases, but permits it if an opinion has “precedential value” and there is no

published opinion on point.

86

Of the 50 cases randomly selected, 48 are

appeals from district courts (15 from the

Eastern District of Virginia, 12 from the Eastern District of North Carolina, five from the

District of South Carolina, four each from the

Western District of Virginia and the Northern

District of West Virginia, three from the District of Maryland, two each from the Middle

District of North Carolina and the Western

District of North Carolina, and one from the

Southern District of West Virginia), and two

 

85. Docket sheets and opinions are on PACER.

Opinions are also on the court’s website, its intranet

site, and Westlaw. Some briefs are on Westlaw. (Of the

12 cases with counseled briefs in this sample, all briefs

are on Westlaw for two cases, and some briefs are on

Westlaw for one case.)

86. 4th Cir. L.R. 36(c) (“In the absence of unusual

circumstances, this Court will not cite an unpublished

disposition in any of its published opinions or unpublished dispositions. Citation of this Court’s unpublished

dispositions in briefs and oral arguments in this Court

and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case. [¶] If counsel believes, nevertheless, that an unpublished disposition of

this Court 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 counsel serves a copy thereof on all other parties

in the case and on the Court.”).

The court’s rule on citation to its unpublished opinions has been in effect essentially as it is since October

8, 1976.
Citing Unpublished Opinions in Federal Appeals

172

are appeals from the Board of Immigration

Appeals.

87

The publication rate in this sample is 2%.

One of the appeals was resolved by a published signed opinion, 30 were resolved by

unpublished per curiam opinions published

in the Federal Appendix (four of which were

printed and the rest of which were typewritten88

), and 19 were resolved by docket judgments.

The published opinion was 7,716 words

in length. Unpublished opinions averaged

273 words in length, ranging from 28 to 2,143.

Twenty-eight opinions were under 1,000

words in length (90%, all unpublished), and

all of these were under 500 words in length.

Six of the appeals were fully briefed. In

39 of the appeals no counseled brief was

filed, and in five of the appeals a counseled

brief was filed only for one side.

There are citations to unpublished court

opinions in 20 of these cases. In 17 cases the

citations are only to opinions in related cases;

in three cases there are citations to unpublished opinions in unrelated cases. All of the

citations to unrelated unpublished opinions

are in briefs, not opinions.

Three of the unrelated unpublished

opinions cited are by the court of appeals for

the Fourth Circuit and one is by a Fourth Circuit district court.

C4–1. In McWaters v. Rick (4th Cir. 02–

1436, filed 04/25/2002, judgment

12/27/2002), in which the court of appeals

decided that a complaint by a former county

supervisor against the county should be dismissed, McWaters v. Cosby, 54 Fed. Appx. 379,

2002 WL 31875539, the supervisor’s appellee

 

87. In 2002, 4,698 cases were filed in the court of appeals for the Fourth Circuit.

88. The court used to “print” substantive unpublished opinions for distribution to a mailing list of interested parties, but as of fiscal year 2005, for budget

reasons, the court now formats all unpublished opinions as “typewritten” and distributes them only electronically.

brief quotes an unpublished Fourth Circuit

opinion: “A panel of this Court has said that

‘the fundamental tenet of equal protection

jurisprudence is not changed by [Village of

Willowbrook v. Olech, 528 U.S. 562 (2000)].’”

C4–2. Bailey v. Kennedy (4th Cir. 02–1818,

filed 07/31/2002, judgment 11/17/2003), in

which the court of appeals dismissed the

plaintiffs’ appeal as improperly interlocutory,

was consolidated with the defendants’ unsuccessful appeal of the denial of qualified

immunity, see Bailey v. Kennedy, 349 F.3d 731

(4th Cir. 2003). The defendants’ appellant

brief in the consolidated case, which is also

the defendants’ cross-appellee brief in the

selected case, includes an unpublished

Fourth Circuit opinion in a string citation to

support a statement that “In responding to

calls involving a possible danger to human

life, both the United States Supreme Court

and the Fourth Circuit have repeatedly recognized that warrantless entries into homes

by law enforcement officers are objectively

reasonable.” A parenthetical note in the citation suggests that the reason for the citation is

to show the court’s application of text from a

Supreme Court opinion.

C4–3. In an unsuccessful pro se employment discrimination appeal from the district court for the Eastern District of North

Carolina, Sharp v. Fishburne (4th Cir. 02–2016,

filed 09/10/2002, judgment 02/14/2003), resolved by unpublished opinion at 56 Fed.

Appx. 140, 2003 WL 329404, the defendants’

informal appellee brief cites an unpublished

opinion by the district court for the Western

District of North Carolina to support a statement that “One court has held that erroneous

advice by a government agency causing

plaintiff to delay her filing may toll the 180-

day period if ‘but for’ that poor advice, plaintiff’s charge would have been timely filed.”

The brief also cites an unpublished opinion

by the court of appeals for the Fourth Circuit

that partially affirmed a published district
Citing Unpublished Opinions in Federal Appeals

173

court opinion in order to complete the citation of the district court opinion.

Individual Case Analyses

In re Swift (4th Cir. 02–0120, filed 02/11/2002,

judgment 03/06/2002).

Appeal from: Middle District of North Carolina.

What happened: Pro se prisoner’s motion to file

a successive habeas corpus petition denied.

Related cases: In re Swift (4th Cir. 97–0539, filed

02/24/1997, judgment 03/17/1997) (denial of pro

se prisoner’s motion to file a successive habeas

corpus petition), United States v. Swift (4th Cir. 99–

7233, filed 09/22/1999, judgment 12/29/1999)

(certificate of appealability denied), and In re Swift

(4th Cir. 00–0700, filed 07/12/2000, judgment

08/01/2000) (denial of pro se prisoner’s motion to

file a successive habeas corpus petition).

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Franklin (4th Cir. 02–0156, filed 04/11/2002,

judgment 05/14/2002).

Appeal from: District of South Carolina.

What happened: Motion to file a successive habeas corpus petition denied.

Related cases: Franklin v. Taylor (4th Cir. 94–

6334, filed 03/30/1994, judgment 06/21/1994)

(denial of habeas corpus relief affirmed) and In re

Franklin (4th Cir. 93–8019, filed 03/16/1993,

judgment 06/01/1993) (petition for habeas corpus

relief through mandamus denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Pettaway (4th Cir. 02–0163, filed 04/25/2002,

judgment 05/21/2002).

Appeal from: Eastern District of Virginia.

What happened: Motion to file a successive habeas corpus petition denied.

Related case: Pettaway v. Angelone (4th Cir. 99–

6599, filed 05/05/1999, judgment 08/26/1999)

(certificate of appealability denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Black (4th Cir. 02–0275, filed 10/21/2002,

judgment 11/06/2002).

Appeal from: District of South Carolina.

What happened: Motion to file a successive habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Abiola v. United States Immigration and

Naturalization Service (4th Cir. 02–1228, filed

03/01/2002, judgment 06/11/2002).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

on the government’s motion. Three children of the

junta-deposed, and subsequently deceased, winner of the 1993 election for president of Nigeria

were deported in absentia because their attorney

did not give them notice of their deportation hearing or attend the hearing himself.

Petitioners’ brief: The petitioners’ 3,558-word

brief cites 16 published court opinions (seven by

the U.S. Supreme Court, three by the Fourth Circuit, and six by other circuits) and three published

opinions by the Board of Immigration Appeals.

Opinion: (1) The court’s docket judgment cites

no opinions.

Cumberland County Hospital System, Inc. v. Ford

Motor Co. (4th Cir. 02–1284, filed 03/13/2002,

judgment 04/15/2002).

Appeal from: Eastern District of North Carolina.

What happened: Civil appeal dismissed by

stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

Goff Building, LLC v. Norwest Bank, Minnesota,

NA (4th Cir. 02–1323, filed 03/26/2002, judgment

01/03/2003).

Appeal from: Northern District of West Virginia.

What happened: Bankruptcy review dismissed

as moot. A debtor moved to dismiss its Chapter

11 petition and commenced a second case, but the

bankruptcy court dismissed the second petition as

duplicative and the district court affirmed.

Appellant’s brief: The appellant’s 2,120-word

brief cites six published opinions (two by other

circuits, one by a Fourth Circuit district court, one

by a Fourth Circuit bankruptcy court, and two by

bankruptcy courts in other circuits).

Appellee’s brief: The appellee’s 4,355-word brief

cites 17 published opinions (one by the U.S. Supreme Court, three by the Fourth Circuit, four by

other circuits, one by a Fourth Circuit district

court, one by a Fourth Circuit bankruptcy court,

and seven by bankruptcy courts in other circuits).

Opinion: (2) The court’s 28-word unpublished

per curiam opinion, In re Goff Building, LLC, 53

Fed. Appx. 690, 2003 WL 23427 (4th Cir. 2003) (no

headnotes), cites no authorities. According to

Westlaw (02/02/2005), the court’s opinion has not

been cited elsewhere.
Citing Unpublished Opinions in Federal Appeals

174

Akinro v. Gbenga (4th Cir. 02–1399, filed

04/17/2002, judgment 07/23/2002).

Appeal from: District of Maryland.

What happened: Unsuccessful pro se prisoner

civil appeal.

Related case: Akinro v. Maryland (4th Cir. 01–

2405, filed 11/28/2001, judgment 07/08/2002)

(unsuccessful pro se civil appeal).

Opinion: (2) The court’s unpublished 98-word

per curiam opinion, Akinro v. Gbenga, 40 Fed.

Appx. 866, 2002 WL 1611623 (4th Cir. 2002) (no

headnotes), cites only the district court’s unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

McWaters v. Rick (4th Cir. 02–1436, filed

04/25/2002, judgment 12/27/2002).

Appeal from: Eastern District of Virginia.

What happened: Successful appeal of a refusal to

dismiss a former Powhatan County supervisor’s

complaint that expenses for travel while in office

were improperly investigated, McWaters v. Rick,

195 F. Supp. 2d 781 (E.D. Va. 2002). The court of

appeals held that the defendants were entitled to

qualified immunity.

Related case: Consolidated with an appeal by

one of the defendants filed a day earlier by a different attorney, McWaters v. Cosby (4th Cir. 02-

1430, filed 04/24/2002, judgment 12/27/2002).

Appellant’s brief: The county supervisors’

11,833-word appellant brief cites 86 published

opinions (25 by the U.S. Supreme Court, 41 by the

Fourth Circuit, 13 by other circuits, four by the

Eastern District of Virginia, two by other Fourth

Circuit districts, and one by Virginia’s supreme

court).

Appellee’s brief: The former supervisor’s 8,057-

word appellee brief cites 28 published opinions

(11 by the U.S. Supreme Court, 12 by the Fourth

Circuit, four by other circuits, and one by Virginia’s supreme court) and one unpublished

Fourth Circuit opinion.

The unpublished Fourth Circuit opinion is

cited to support the statement that “A panel of

this Court has said that ‘the fundamental tenet of

equal protection jurisprudence is not changed by

[Village of Willowbrook v. Olech, 528 U.S. 562

(2000)].’” (Page 22.) The point in controversy was

whether, for qualified immunity purposes, it was

settled law that the Equal Protection Clause proscribed discrimination against a class of one.

Appellant’s reply brief: The county supervisors’

5,384-word reply brief cites 28 published opinions

(nine by the U.S. Supreme Court, 15 by the Fourth

Circuit, three by other circuits, and one by Virginia’s supreme court).

Opinion: (2) The court’s 2,143-word unpublished printed per curiam opinion, McWaters v.

Cosby, 54 Fed. Appx. 379, 2002 WL 31875539 (4th

Cir. 2002) (two headnotes), cites five published

opinions (three by the U.S. Supreme Court, one by

the Fourth Circuit, and the Eastern District of Virginia opinion in this case). According to Westlaw

(02/08/2005), the court’s opinion has been cited

in one published Fourth Circuit district court

opinion, one appellate brief in another circuit’s

case, and three briefs in two district court cases in

two Fourth Circuit districts.

Pledger v. City of Virginia Beach (4th Cir. 02–

1511, filed 05/15/2002, judgment 07/31/2002).

Appeal from: Eastern District of Virginia.

What happened: Unsuccessful pro se civil appeal

of the district court’s refusal to reconsider the denial of relief from final judgment.

Appellee’s brief: The city’s 1,587-word appellee

brief cites eight published opinions (three by the

U.S. Supreme Court and five by the Fourth Circuit).

Opinion: (2) The court’s unpublished 97-word

per curiam opinion, Pledger v. City of Virginia

Beach, 42 Fed. Appx. 592, 2002 WL 1760840 (4th

Cir. 2002) (no headnotes), cites only the district

court’s unpublished opinion. According to Westlaw (02/08/2005), the court’s opinion has not

been cited elsewhere.

Madey v. Duke University (4th Cir. 02–1585, filed

06/03/2002, judgment 06/06/2002).

Appeal from: Middle District of North Carolina.

What happened: Civil appeal dismissed for administrative error.

Opinion: (1) The court’s docket judgment cites

no opinions.

IGEN International, Inc. v. Roche Diagnostics

GMBH (4th Cir. 02–1607, filed 06/06/2002,

judgment 07/22/2002).

Appeal from: District of Maryland.

What happened: Civil appeal voluntarily dismissed.

Related case: Consolidated with an appeal filed

two weeks earlier by the appellee, IGEN International, Inc. v. Roche Diagnostics GMBH (4th Cir. 02–

1537, filed 05/23/2002, judgment 07/09/2003).

Following the dismissal of the plaintiff’s appeal,

oral argument was heard in the defendant’s appeal, and the court affirmed in part and reversed

in part, IGEN International, Inc. v. Roche Diagnostics

GMBH, 335 F.3d 303 (4th Cir. 2003).
Citing Unpublished Opinions in Federal Appeals

175

Opinion: (1) The court’s docket judgment cites

no opinions.

Bailey v. Kennedy (4th Cir. 02–1818, filed

07/31/2002, judgment 11/17/2003).

Appeal from: Western District of North Carolina.

What happened: Appeal by plaintiffs from

summary judgment decisions dismissed as improperly interlocutory. The plaintiffs sued police

officers for the wrongful arrest of one of them

based on a neighbor’s report that he was suicidal.

Related case: The appeal was consolidated with

an unsuccessful appeal by the defendants in the

same case challenging the district court’s denial of

qualified immunity, Bailey v. Kennedy (4th Cir. 02–

1761, filed 07/16/2002, judgment 11/17/2003).

Cross-appellee’s brief: The defendant’s 13,929-

word appellant brief in 02–1761 cites 45 published

opinions (15 by the U.S. Supreme Court, 15 by the

Fourth Circuit, four by other circuits, one by a

Fourth Circuit district, five by North Carolina’s

supreme court, and five by North Carolina’s court

of appeals) and one unpublished Fourth Circuit

opinion.

The unpublished Fourth Circuit opinion is the

fourth of four opinions in a string citation headed

“see, e.g.,” and supporting the statement, “In responding to calls involving a possible danger to

human life, both the United States Supreme Court

and the Fourth Circuit have repeatedly recognized that warrantless entries into homes by law

enforcement officers are objectively reasonable.”

(Page 43.) The other opinions cited in the string

are two Supreme Court opinions and a published

Fourth Circuit opinion. A parenthetical note in the

citation suggests that the reason for the citation is

to show the circuit’s application of text from a

Supreme Court opinion: “citing the following

quote from Thompson v. Louisiana, 469 U.S. 17, 21,

105 S. Ct. 409, 83 L. Ed. 2d 246 (1984): ‘[P]olice

may make warrantless entries on the premises

where “they reasonably believe that a person

within is in need of immediate aid.”’”

Cross-appellant’s brief: The plaintiffs’ 14,020-

word appellee brief in 02–1761 and crossappellant brief in 02–1818 cites 72 published opinions (23 by the U.S. Supreme Court, 18 by the

Fourth Circuit, five by other circuits, one by a

Fourth Circuit district, 13 by North Carolina’s supreme court, and 12 by North Carolina’s court of

appeals).

Cross-appellee’s reply brief: The defendants’

13,825-word reply brief cites 54 published opinions (14 by the U.S. Supreme Court, 21 by the

Fourth Circuit, five by other circuits, eight by

North Carolina’s supreme court, and six by North

Carolina’s court of appeals).

Cross-appellant’s reply brief: The plaintiffs’ 4,609-

word reply brief cites 15 published opinions (five

by the U.S. Supreme Court, four by the Fourth

Circuit, two by other circuits, three by North

Carolina’s supreme court, and one by North Carolina’s court of appeals).

Opinion: (3) The court’s 7,716-word published

opinion, Bailey v. Kennedy, 349 F.3d 731 (4th Cir.

2003) (16 headnotes), principally concerns the

consolidated appeal concerning qualified immunity. The opinion cites 30 published opinions (10

by the U.S. Supreme Court, 13 by the Fourth Circuit, one by another circuit, two by North Carolina’s supreme court, and four by North Carolina’s court of appeals). According to Westlaw

(02/08/2005), the court’s opinion has been cited

in three Fourth Circuit opinions (two published

and one unpublished), one published opinion by

the Western District of North Carolina, five opinions by other Fourth Circuit districts (three published and two unpublished), six secondary

sources, two briefs in a U.S. Supreme Court case,

and five briefs in five district court cases (two in

the Western District of North Carolina, one in another Fourth Circuit district, and two in districts

in other circuits). One Fourth Circuit opinion is a

published denial of rehearing the consolidated

case.

Wells v. Ikon Office Solutions, Inc. (4th Cir. 02–

1869, filed 08/13/2002, judgment 10/24/2002).

Appeal from: Eastern District of North Carolina.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Harrison v. Bratton (4th Cir. 02–1938, filed

08/27/2002, judgment 01/22/2003).

Appeal from: Eastern District of Virginia.

What happened: Pro se civil appeal dismissed

for failure to prosecute.

Opinion: (1) The court’s docket judgment cites

no opinions.

Sharp v. Fishburne (4th Cir. 02–2016, filed

09/10/2002, judgment 02/14/2003).

Appeal from: Eastern District of North Carolina.

What happened: Unsuccessful pro se employment discrimination appeal.

Related case: Sharp v. Fishburne (4th Cir. 01–

2210, filed 10/10/2001, judgment 01/22/2002)

(pro se civil appeal dismissed).

Appellee’s brief: The defendants’ informal 9,043-

word appellee brief cites 38 published opinions
Citing Unpublished Opinions in Federal Appeals

176

(four by the U.S. Supreme Court, 14 by the Fourth

Circuit, two by other circuits, two by the Eastern

District of North Carolina, six by other Fourth

Circuit districts, one by a Fourth Circuit bankruptcy court, three by North Carolina’s supreme

court, and six by North Carolina’s court of appeals), two unpublished opinions (one by the

Fourth Circuit and one by a Fourth Circuit district), and one treatise.

The unpublished Fourth Circuit opinion is a

partial affirmance, cited to complete the citation of

a published district court opinion.

The unpublished district court opinion supports the statement, “One court has held that erroneous advice by a government agency causing

plaintiff to delay her filing may toll the 180-day

period if ‘but for’ that poor advice, plaintiff’s

charge would have been timely filed.” (Page 9.)

Opinion: (2) The court’s unpublished 90-word

per curiam opinion, Sharp v. Fishburne, 56 Fed.

Appx. 140, 2003 WL 329404 (4th Cir. 2003) (no

headnotes), cites only the district court’s unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

Tejan v. Immigration and Naturalization Service

(4th Cir. 02–2290, filed 11/07/2002, judgment

09/04/2003).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal.

Petitioner’s brief: The petitioner’s 3,100-word

brief cites 10 published court opinions (five by the

U.S. Supreme Court and five by other circuits),

two published decisions of the Board of Immigration Appeals, and one medical treatise.

Respondent’s brief: The government’s 9,862-

word respondent brief cites 30 published court

opinions (five by the U.S. Supreme Court, five by

the Fourth Circuit, and 20 by other circuits) and

five published decisions of the Board of Immigration Appeals. Two of these citations appear to be

in two of the three pages of the brief that are missing from the copies filed with the court. (The

length of the brief without missing pages was

computed by adding three times the average

number of words per page to the number of

words counted in the pages filed.)

Opinion: (2) The court’s unpublished 452-word

printed per curiam opinion, Tejan v. Ashcroft, 75

Fed. Appx. 130, 2003 WL 22070539 (4th Cir. 2003)

(two headnotes), cites two published Fourth Circuit opinions. According to Westlaw

(02/08/2005), the court’s opinion has been cited

in one secondary source.

United States v. Kennedy (4th Cir. 02–4072, filed

01/29/2002, judgment 09/23/2002).

Appeal from: Western District of Virginia.

What happened: Unsuccessful appeal of criminal

conviction for distribution of cocaine.

Appellant’s brief: The defendant’s 3,216-word

appellant brief cites six published opinions from

other circuits and one ALR article.

Appellee’s brief: The government’s 1,509-word

appellee brief cites five published opinions by

other circuits.

Opinion: (2) The court’s unpublished 320-word

printed per curiam opinion, United v. Kennedy, 46

Fed. Appx. 200, 2002 WL 31104571 (4th Cir. 2002)

(no headnotes), cites three published opinions by

other circuits. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

United States v. Knight (4th Cir. 02–4238, filed

03/18/2002, judgment 06/10/2002).

Appeal from: Western District of North Carolina.

What happened: Stipulated dismissal of a criminal appeal.

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Wiggan (4th Cir. 02–4343, filed 04/30/2002,

judgment 06/26/2002).

Appeal from: Southern District of West Virginia.

What happened: Pro se prisoner’s petition for

writ of mandamus denied as moot.

Related case: United States v. Wiggan (4th Cir.

00–4318, filed 04/21/2000, judgment 02/11/2003)

(unsuccessful criminal appeal).

Opinion: (2) The court’s unpublished 109-word

per curiam opinion, In re Wiggan, 38 Fed. Appx.

936, 2002 WL 1376185 (4th Cir. 2002) (no headnotes), cites no opinions. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

United States v. Siriphat (4th Cir. 02–4626, filed

08/09/2002, judgment 08/26/2002).

Appeal from: Eastern District of Virginia.

What happened: Bail appeal voluntarily dismissed by the government.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Felder (4th Cir. 02–4858, filed

10/31/2002, judgment 04/06/2004).

Appeal from: District of South Carolina.

What happened: Criminal sentence vacated and

case remanded for reconsideration of whether a
Citing Unpublished Opinions in Federal Appeals

177

prior state guilty plea was for mere possession or

for possession with intent to distribute cocaine.

Related case: Consolidated with United States v.

Felder (4th Cir. 02–4922, filed 11/21/2002, judgment 04/06/2004) (unsuccessful criminal appeal).

Appellant’s brief: The defendant’s 3,509-word

appellant brief cites four published Fourth Circuit

opinions.

Appellee’s brief: The government’s 2,169-word

appellee brief cites 21 published opinions (one by

the U.S. Supreme Court and 20 by the Fourth Circuit).

Appellant’s reply brief: The defendant’s 561-

word reply brief cites three published opinions

(one by the U.S. Supreme Court and two by the

Fourth Circuit).

Opinion: (2) The court’s unpublished 1,465-

word printed per curiam opinion, United States v.

Felder, 60 Fed. Appx. 108, 2004 WL 728197 (4th

Cir. 2004) (three headnotes), cites 12 published

opinions (two by the U.S. Supreme Court and 10

by the Fourth Circuit). According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

United States v. Grubb (4th Cir. 02–4946, filed

12/03/2002, judgment 06/06/2003).

Appeal from: Western District of Virginia.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Jenkins v. Bell (4th Cir. 02–6016, filed 01/07/2002,

judgment 02/27/2002).

Appeal from: Eastern District of North Carolina.

What happened: Certificate of appealability denied.

Opinion: (2) The court’s unpublished 102-word

per curiam opinion, Jenkins v. Bell, 30 Fed. Appx.

115, 2002 WL 279411 (4th Cir. 2002) (no headnotes), cites only the district court’s unpublished

opinion. According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

Redden v. Galley (4th Cir. 02–6035, filed

01/09/2002, judgment 06/05/2002).

Appeal from: District of Maryland.

What happened: Certificate of appealability denied.

Related case: Consolidated with Redden v. Mades

(4th Cir. 02–6190, filed 02/05/2002, judgment

06/05/2002) (unsuccessful pro se section 1983

appeal).

Opinion: (2) The court’s unpublished 150-word

per curiam opinion, Redden v. Galley, 34 Fed.

Appx. 135, 2002 WL 984403 (4th Cir. 2002) (no

headnotes), cites the two unpublished district

court opinions in these two cases. According to

Westlaw (02/08/2005), the court’s opinion has not

been cited elsewhere.

In re McCall (4th Cir. 02–6048, filed 01/10/2002,

judgment 04/02/2002).

Appeal from: Eastern District of North Carolina.

What happened: Denial of pro se prisoner’s petition for a writ of mandamus, because the relief

sought could be obtained by other means.

Related cases: United States v. McCall (4th Cir.

97–5024, filed 12/31/1997, judgment 06/02/1998)

(criminal appeal voluntarily dismissed) and

United States v. McCall (4th Cir. 00–6057, filed

01/10/2000, judgment 03/30/2000) (certificate of

appealability denied).

Opinion: (2) The court’s unpublished 291-word

per curiam opinion, In re McCall, 32 Fed. Appx.

80, 2002 WL 489374 (4th Cir. 2002) (no headnotes),

cites five published opinions (two by the U.S. Supreme Court and three by the Fourth Circuit). According to Westlaw (02/08/2005), the court’s

opinion has not been cited elsewhere.

Bynum v. Bradford (4th Cir. 02–6319, filed

02/21/2002, judgment 06/03/2002).

Appeal from: Eastern District of Virginia.

What happened: Pro se prisoner’s section 1983

appeal dismissed as frivolous.

Opinion: (2) The court’s unpublished 106-word

per curiam opinion, Bynum v. Bradford, 36 Fed.

Appx. 100, 2002 WL 1162404 (4th Cir 2002) (no

headnotes), cites only the district court’s unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

Tucker v. Beck (4th Cir. 02–6331, filed 02/25/2002,

judgment 04/02/2002).

Appeal from: Eastern District of North Carolina.

What happened: Pro se prisoner appeal dismissed for failure to prosecute.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Rainey (4th Cir. 02–6332, filed

02/25/2002, judgment 07/23/2002).

Appeal from: Eastern District of Virginia.

What happened: Certificate of appealability denied.

Related cases: United States v. Rainey (4th Cir.

95–5447, filed 06/07/1995, judgment 06/22/1995)

(criminal appeal voluntarily dismissed), United

States v. Rainey (4th Cir. 95–5451, filed

06/09/1995, judgment 10/15/1996) (criminal sentence for cocaine distribution vacated for judge’s
Citing Unpublished Opinions in Federal Appeals

178

failure to apply the minimum sentence, and case

remanded for sentencing before a different judge),

United States v. Rainey (4th Cir. 97–4124, filed

02/19/1997, judgment 04/14/1998) (20-year sentence affirmed), United States v. Rainey (4th Cir.

99–7160, filed 09/01/1999, judgment 05/16/2000)

(certificate of appealability denied for pro se prisoner appeal), and United States v. Rainey (4th Cir.

01–6879, filed 05/31/2001, judgment 10/25/2001)

(unsuccessful pro se prisoner appeal).

Opinion: (2) The court’s unpublished 98-word

per curiam opinion, United States v. Rainey, 41 Fed.

Appx. 648, 2002 WL 1613771 (4th Cir. 2002) (no

headnotes), cites only the district court’s unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

Williams v. Haney (4th Cir. 02–6453, filed

03/19/2002, judgment 07/08/2002).

Appeal from: Northern District of West Virginia.

What happened: Unsuccessful pro se prisoner’s

section 1983 appeal.

Opinion: (2) The court’s unpublished 108-word

per curiam opinion, Williams v. Haney, 39 Fed.

Appx. 877, 2002 WL 1452493 (4th Cir. 2002) (no

headnotes), cites only the district court’s unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

Goodwyn v. United States (4th Cir. 02–6639, filed

04/24/2002, judgment 08/23/2002).

Appeal from: Eastern District of North Carolina.

What happened: Unsuccessful pro se prisoner

appeal of the district court’s dismissal of his habeas corpus petition.

Opinion: (2) The court’s unpublished 85-word

per curiam opinion, Goodwyn v. United States, 42

Fed. Appx. 669, 2002 WL 1941541 (4th Cir. 2002)

(no headnotes), cites only the district court’s

unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

Dewitt v. Mailroom Personnel (4th Cir. 02–6654,

filed 04/29/2002, judgment 04/03/2003).

Appeal from: District of South Carolina.

What happened: Pro se prisoner appeal voluntarily dismissed.

Related case: Consolidated with an appeal filed

eight months later, Dewitt v. Mailroom Personnel

(4th Cir. 03–6002, filed 01/02/2003, judgment

04/03/2003) (pro se prisoner appeal voluntarily

dismissed).

Opinion: (1) The court’s docket judgment cites

no opinion.

McNeill v. Sutton (4th Cir. 02–6723, filed

05/10/2002, judgment 07/02/2002).

Appeal from: Eastern District of North Carolina.

What happened: Pro se prisoner appeal dismissed for failure to prosecute.

Opinion: (1) The court’s docket judgment cites

no opinion.

United States v. Moseley (4th Cir. 02–6900, filed

06/14/2002, judgment 09/11/2002).

Appeal from: Eastern District of Virginia.

What happened: Certificate of appealability denied.

Opinion: (2) The court’s unpublished 224-word

per curiam opinion, United States v. Moseley, 47

Fed. Appx. 209, 2002 WL 31017806 (4th Cir. 2002)

(no headnotes), cites three published opinions

(one by the Fourth Circuit and two by other circuits) and the district court’s unpublished opinion. According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

Johns v. Matthew (4th Cir. 02–6939, filed

06/24/2002, judgment 08/26/2002).

Appeal from: Eastern District of Virginia.

What happened: Unsuccessful pro se prisoner

appeal.

Opinion: (2) The court’s unpublished 91-word

per curiam opinion, Johns v. Matthew, 43 Fed.

Appx. 691, 2002 WL 1963609 (4th Cir. 2002) (no

headnotes), cites only the district court’s unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

United States v. Dodge (4th Cir. 02–6973, filed

06/27/2002, judgment 08/29/2002).

Appeal from: Northern District of West Virginia.

What happened: Certificate of appealability denied.

Opinion: (2) The court’s 109-word unpublished

per curiam opinion, United States v. Dodge, 43 Fed.

Appx. 701, 2002 WL 1987414 (4th Cir. 2002) (no

headnotes), cites only the district court’s unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

United States v. Rosario (4th Cir. 02–7022, filed

07/09/2002, judgment 12/12/2002).

Appeal from: Eastern District of North Carolina.

What happened: Pro se prisoner appeal dismissed for failure to file a timely notice of appeal.

Appellee’s brief: The government’s 368-word informal appellee brief cites one published Fourth

Circuit opinion.
Citing Unpublished Opinions in Federal Appeals

179

Opinion: (2) The court’s unpublished 230-word

per curiam opinion, United States v. Rosario, 52

Fed. Appx. 215, 2002 WL 31771440 (4th Cir. 2002)

(no headnotes), cites one published Fourth Circuit

opinion. According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

Althouse v. Lowery (4th Cir. 02–7138, filed

08/02/2002, judgment 10/31/2002).

Appeal from: Eastern District of North Carolina.

What happened: Unsuccessful pro se prisoner

appeal of the denial of Bivens relief, with the court

of appeal affirming “substantially on the reasoning of the district court.”

Opinion: (2) The court’s unpublished 147-word

per curiam opinion, Althouse v. Lowery, 49 Fed.

Appx. 476, 2002 WL 31430348 (4th Cir. 2002) (no

headnotes), cites two published opinions (one by

the U.S. Supreme Court and one by the Fourth

Circuit) and the district court’s unpublished order. According to Westlaw (02/08/2005), the

court’s opinion had not been cited elsewhere.

Eury v. Angelone (4th Cir. 02–7261, filed

08/28/2002, judgment 11/14/2002).

Appeal from: Eastern District of Virginia.

What happened: Pro se prisoner appeal dismissed as premature.

Related case: Eury v. Goins (4th Cir. 02–7438,

filed 10/01/2002, judgment 12/03/2002) (pro se

prisoner appeal dismissed for failure to prosecute).

Opinion: (2) The court’s unpublished 135-word

per curiam opinion, Eury v. Angelone, 50 Fed.

Appx. 639, 2002 WL 31521348 (4th Cir. 2002) (no

headnotes), cites one U.S. Supreme Court opinion.

According to Westlaw (02/08/2005), the court’s

opinion has not been cited elsewhere.

Brown v. Ashcroft (4th Cir. 02–7349, filed

09/17/2002, judgment 11/07/2002).

Appeal from: Eastern District of Virginia.

What happened: Pro se prisoner appeal dismissed for failure to prosecute.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Medrano (4th Cir. 02–7502, filed

10/15/2002, judgment 01/06/2003).

Appeal from: Eastern District of Virginia

What happened: Certificate of appealability denied.

Opinion: (2) The court’s 230-word unpublished

per curiam opinion, United States v. Medrano, 53

Fed. Appx. 710, 2003 WL 57334 (4th Cir. 2003) (no

headnotes), cites two published opinions (one by

the U.S. Supreme Court and one by the Fourth

Circuit) and the district court’s unpublished opinion. According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

Phillips v. Angelone (4th Cir. 02–7512, filed

10/16/2002, judgment 01/06/2003).

Appeal from: Western District of Virginia.

What happened: Certificate of appealability denied to pro se prisoner appealing district court’s

dismissal of his habeas corpus petition.

Opinion: (2) The court’s unpublished 120-word

per curiam opinion, Phillips v. Angelone, 53 Fed.

Appx. 712, 2003 WL 57366 (4th Cir. 2003) (no

headnotes), cites only the district court’s unpublished memorandum opinion. According to Westlaw (02/08/2005), the court’s opinion has not

been cited elsewhere.

Spencer v. Stiff (4th Cir. 02–7529, filed 10/16/2002,

judgment 10/31/2002).

Appeal from: Eastern District of Virginia.

What happened: Pro se prisoner appeal voluntarily dismissed.

Related case: In re Spencer (4th Cir. 01–7467, filed

08/06/2001, judgment 11/20/2001) (petition for

writ of mandamus denied).

Opinion: (1) The court’s docket judgment cites

no opinion.

Brown v. Anderson (4th Cir. 02–7572, filed

10/22/2002, judgment 03/25/2003).

Appeal from: Eastern District of North Carolina.

What happened: Certificate of appealability denied to pro se prisoner appealing district court’s

dismissal of his habeas corpus petition.

Opinion: (2) The court’s unpublished 255-word

per curiam opinion, Brown v. Anderson, 61 Fed.

Appx. 76, 2003 WL 1522585 (4th Cir. 2003) (no

headnotes), cites three published opinions (two by

the U.S. Supreme Court and one by the Fourth

Circuit). According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

Brown v. Metts (4th Cir. 02–7573, filed

10/22/2002, judgment 04/09/2003).

Appeal from: District of South Carolina.

What happened: Unsuccessful pro se prisoner

appeal of the denial of relief on his civil rights

complaint, with the court of appeal affirming on

the reasoning of the district court.

Related cases: Consolidated with Brown v. Metts

(4th Cir. 02–7775, filed 11/21/2002, judgment

04/09/2003) (unsuccessful pro se prisoner appeal). Other related cases include Brown v. Metts

(4th Cir. 00–6512, filed 04/18/2000, judgment

09/05/2000) (prior successful pro se prisoner appeal) and United States v. Brown (4th Cir. 02–4764,
Citing Unpublished Opinions in Federal Appeals

180

filed 09/24/2002, judgment 01/08/2003) (criminal

appeal dismissed).

Appellee’s brief: The government’s informal 831-

word appellee brief cites three published opinions

(two by the U.S. Supreme Court and one by the

Fourth Circuit).

Opinion: (2) The court’s unpublished 97-word

per curiam opinion, Brown v. Metts, 60 Fed. Appx.

496, 2003 WL 1826797 (4th Cir. 2003) (no headnotes), cites only the district court’s unpublished

opinion. According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

In re Riggleman (4th Cir. 02–7590, filed

10/24/2002, judgment 12/06/2002).

Appeal from: Northern District of West Virginia.

What happened: Pro se prisoner petition for writ

of habeas corpus dismissed for failure to prosecute.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Davis (4th Cir. 02–7607, filed

10/28/2002, judgment 01/07/2003).

Appeal from: Eastern District of North Carolina.

What happened: Certificate of appealability denied to pro se prisoner appealing district court’s

dismissal of his habeas corpus petition.

Related case: In re Davis (4th Cir. 02–7176, filed

08/14/2002, judgment 11/14/2002) (petition for

writ of mandamus denied).

Opinion: (2) The court’s unpublished 228-word

per curiam opinion, United States v. Davis, 53 Fed.

Appx. 719, 2003 WL 57934 (4th Cir. 2003) (no

headnotes), cites two published opinions (one by

the U.S. Supreme Court and one by the Fourth

Circuit) and the district court’s unpublished order. According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

Henson v. Angelone (4th Cir. 02–7673, filed

11/04/2002, judgment 02/05/2003).

Appeal from: Eastern District of Virginia.

What happened: Unsuccessful appeal by a prisoner of a decision by a magistrate judge.

Related cases: Henson v. Gray (4th Cir. 02–7937,

filed 12/27/2002, judgment 06/24/2003) (dismissed for failure to pay the filing fee) and Henson

v. Angelone (4th Cir. 03–6054, filed 01/08/2003,

judgment 03/28/2003) (dismissed as moot).

Opinion: (2) The court’s 100-word unpublished

per curiam opinion, Henson v. Angelone, 55 Fed.

Appx. 213, 2003 WL 246125 (4th Cir. 2003) (no

headnotes), cites only the district court’s unpublished opinion. According to Westlaw

(02/08/2005), the court’s opinion has not been

cited elsewhere.

Muhammad v. Brooks (4th Cir. 02–7727, filed

11/14/2002, judgment 03/13/2003).

Appeal from: Eastern District of Virginia.

What happened: Certificate of appealability denied.

Opinion: (2) The court’s 225-word unpublished

per curiam opinion, Muhammad v. Brooks, 59 Fed.

Appx. 593, 2003 WL 1093016 (4th Cir. 2003) (no

headnotes), cites three published opinions (two by

the U.S. Supreme Court and one by the Fourth

Circuit). According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

Graham v. Johnson (4th Cir. 02–7850, filed

12/10/2002, judgment 08/28/2003).

Appeal from: Western District of Virginia.

What happened: Pro se prisoner’s habeas corpus

appeal dismissed for failure to timely file the notice of appeal.

Opinion: (2) The court’s unpublished 242-word

per curiam opinion, Graham v. Johnson, 74 Fed.

Appx. 260, 2003 WL 22023332 (4th Cir. 2003) (no

headnotes), cites three U.S. Supreme Court opinions. According to Westlaw (02/08/2005), the

court’s opinion has not been cited elsewhere.

5. Fifth Circuit89

As of January 1, 1996, unpublished opinions

by the court of appeals for the Fifth Circuit

are no longer precedent, but they may be

cited as persuasive authority.

90

 

89. Docket sheets are on PACER. Published opinions are on the court’s website, its intranet site, and

Westlaw. Unpublished opinions are on the court’s website and its intranet site. Most unpublished opinions are

also on Westlaw. (Of the 16 cases in this sample resolved by unpublished opinions, the opinions for 11 of

the cases are on Westlaw.) Most briefs are on Westlaw.

(Of the 16 cases with counseled briefs in this sample, all

briefs are on Westlaw for 11 cases, and some briefs are

on Westlaw for one case.)

90. 5th Cir. L.R. 47.5.4 (“Unpublished opinions issued on or after January 1, 1996, are not precedent, except under the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show double jeopardy, abuse of the writ, notice, sanctionable conduct,

entitlement to attorney’s fees, or the like). An unpublished opinion may, however, be persuasive. An unpublished opinion may be cited, but if cited in any

document being submitted to the court, a copy of the

unpublished opinion must be attached to each document.”).
Citing Unpublished Opinions in Federal Appeals

181

Of the 50 cases randomly selected, 45 are

appeals from district courts (11 from the

Southern District of Texas; eight from the

Eastern District of Texas; seven from the

Western District of Texas; six from the

Northern District of Texas; three each from

the Eastern District of Louisiana, the Middle

District of Louisiana, and the Southern District of Mississippi; and two each from the

Western District of Louisiana and the Northern District of Mississippi), one is an appeal

from the United States Tax Court, and four

are appeals from the Board of Immigration

Appeals.

91

The publication rate in this sample is 6%.

Three of the appeals were resolved by published signed opinions, 16 were resolved by

unpublished per curiam opinions (11 of

which are published in the Federal Appendix—

six in cases on the court’s conference calendar

and five in cases on the court’s summary calendar; and five of which are tabled in the Federal Appendix92

—three in cases on the court’s

conference calendar and two in cases on the

court’s summary calendar), and 31 were resolved by docket judgments.

Published opinions averaged 4,805

words in length, ranging from 2,845 to 7,489.

Unpublished opinions averaged 390 words in

length, ranging from 41 to 1,266. Fourteen

opinions were under 1,000 words in length

(74%, all unpublished), and 13 of these were

under 500 words in length (68%).

 The court adopted a rule distinguishing published

from unpublished opinions on October 15, 1981. Until

1996, the court regarded unpublished opinions as precedential.

91. In 2002, 8,810 cases were filed in the court of appeals for the Fifth Circuit.

92. The court only sends published opinions to

Westlaw. But as of July 2003, the court now posts unpublished opinions on the Internet and Westlaw retrieves them from there. So Westlaw has the text of only

some unpublished opinions issued before July 2003, but

is expanding its collection over time to include opinions

back to 1998.

Eleven of the appeals were fully briefed.

In 33 of the appeals no counseled brief was

filed, and in six of the appeals a counseled

brief was filed only for one side.

There are citations to unpublished court

opinions in four of these cases. In one case

the citations are only to opinions in related

cases; in three cases there are citations to unpublished opinions in unrelated cases. All of

the citations to unrelated unpublished opinions are in briefs, not opinions.

None of the unrelated unpublished

opinions cited are by the court of appeals for

the Fifth Circuit. One of the opinions is by a

Fifth Circuit district court, one is by a district

court in another circuit, and two are by

Texas’s courts of appeals.

C5–1. In a partially successful appeal by

the plaintiff in an action for automobile accident insurance benefits, Hamburger v. State

Farm Mutual Automobile Insurance Co. (5th Cir.

02–21126, filed 10/14/2002, judgment

03/02/2004), resolved by published opinion

at 361 F.3d 875, the appellant cited an unpublished opinion by the district court for the

Northern District of Texas in a discussion of

the reasonableness of the insurer’s conduct in

bad-faith actions.

C5–2. In a successful civil appeal by the

manufacturer of plumbing products in an

action by a distributor for breach of a distribution contract, Coburn Supply Co. v. Kohler

Co. (5th Cir. 02–41317, filed 09/18/2002,

judgment 08/06/2003), resolved by published opinion at 342 F.3d 372, the defendant

cited a different unpublished opinion in each

of its briefs. The defendant’s appellant brief

devotes 21 lines of text, encompassing two

paragraphs, to an unpublished opinion by

the district court for the District of Massachusetts concerning reasonable notice in terminating a contract to distribute dental equipment. The reply brief identifies an unpublished opinion by a Texas court of appeals as

a “particularly demonstrative example from
Citing Unpublished Opinions in Federal Appeals

182

Texas case law” concerning franchise agreements.

C5–3. In an unsuccessful appeal of

summary judgment awarded to a store in an

action for false imprisonment of a suspected

shoplifter, Vilandos v. Sam’s Club Wal-Mart

Stores Inc. (5th Cir. 02–20762, filed

07/15/2002, judgment 04/03/2003), resolved

by unpublished opinion at 65 Fed. Appx. 509,

2003 WL 1923003, the shopper’s appellant

brief devotes 14 lines of text to a discussion of

an unpublished opinion by a Texas court of

appeals concerning how much time is reasonable to detain a suspected shoplifter.

Individual Case Analyses

United States v. Eddings (5th Cir. 02–10493, filed

04/29/2002, judgment 10/28/2002).

Appeal from: Northern District of Texas.

What happened: Pro se prisoner appeal dismissed for failure to file a brief in support of certificate of appealability.

Related cases: The prisoner filed three other appeals the same day and a fourth four months

later: United States v. Eddings (5th Cir. 02–10489,

filed 04/29/2002, judgment 10/28/2002); United

States v. Eddings (5th Cir. 02–10490, filed

04/29/2002, judgment 10/28/2002); United States

v. Eddings (5th Cir. 02–10492, filed 04/29/2002,

judgment 10/28/2002); and United States v. Eddings (5th Cir. 02–10953, filed 08/28/2002, judgment 10/28/2002). All of the appeals were dismissed on the same day for failure to file briefs.

Opinion: (1) The court’s docket judgment cites

no opinions.

Von Essen, Inc. v. Marnac, Inc. (5th Cir. 02–10573,

filed 05/15/2002, judgment 03/11/2003).

Appeal from: Northern District of Texas.

What happened: Unsuccessful appeal of an

award of attorney fees consolidated with an unsuccessful appeal of the district court’s confirmation of an arbitration award. After the appeals

were consolidated, the attorney fee award was not

briefed. The text of the court’s opinion is “Affirmed.”

Related case: Von Essen, Inc. v. Marnac, Inc. (5th

Cir. 02–10143, filed 02/07/2002, judgment

03/11/2003) (unsuccessful appeal of arbitration

award).

Opinion: (2) The court’s unpublished 41-word

per curiam opinion, Von Essen Inc. v. Marnac Inc.,

64 Fed. Appx. 416, 2003 WL 1524557 (5th Cir.

2003) (no headnotes), cites no opinions. (The text

of the opinion is the single word “Affirmed.” Everything else is reference material.) According to

Westlaw (02/11/2005), the court’s opinion has not

been cited elsewhere.

Pace v. Cockrell (5th Cir. 02–10664, filed

06/07/2002, judgment 07/09/2002).

Appeal from: Northern District of Texas.

What happened: Pro se prisoner appeal dismissed as untimely.

Opinion: (1) The court’s docket judgment cites

no opinions.

Selver v. Ford Motor Credit Co. (5th Cir. 02–

11044, filed 09/19/2002, judgment 01/24/2003).

Appeal from: Northern District of Texas.

What happened: Pro se prisoner appeal dismissed upon denial of a motion to proceed in

forma pauperis.

Opinion: (2) The court’s unpublished 294-word

per curiam opinion, Selver v. Ford Motor Credit Co.,

58 Fed. Appx. 597, 2003 WL 261876 (5th Cir. 2003)

(no headnotes), cites two published Fifth Circuit

opinions and two unpublished opinions in previous actions by the prisoner (one by the Fifth Circuit and one by the Northern District of Texas).

The two unpublished opinions cited are dismissals for frivolousness and, according to the court,

count as two previous “strikes.”

According to Westlaw (07/19/2004), this

judgment has not been cited elsewhere. The

court’s internal website, however, shows that this

judgment was cited as one of three “strikes”

against the prisoner in an order that he be

“BARRED from bringing any civil action or appeal in forma pauperis while he is incarcerated or

detained in any facility unless he shows that he is

under imminent danger of serious physical injury,” Selver v. Collin County District Court (5th Cir.

02–41560, unpublished per curiam opinion filed

04/22/2003).

United States v. Ross (5th Cir. 02–11053, filed

09/20/2002, judgment 04/22/2003).

Appeal from: Northern District of Texas.

What happened: Certificate of appealability denied.

Related case: United States v. Fields, 72 F.3d 1200

(5th Cir. 1996) (94–10185) (largely unsuccessful

appeal by the defendant and his codefendants of

convictions for cocaine distribution).

Opinion: (1) The court’s docket judgment cites

no opinions.
Citing Unpublished Opinions in Federal Appeals

183

United States v. Sillemon (5th Cir. 02–11344, filed

12/13/2002, judgment 12/12/2003).

Appeal from: Northern District of Texas.

What happened: Unsuccessful criminal appeal.

The defendant was sentenced to 99 years in

prison, three years of supervised release, restitution of $43,336, and a special assessment of $900

for four bank robberies. The court of appeals held

that the trial court did not abuse its discretion in

denying a continuance upon defendant’s switching retained counsel shortly before trial.

Appellant’s brief: The defendant’s 3,941-word

appellant brief cites eight published opinions (two

by the U.S. Supreme Court and six by the Fifth

Circuit).

Appellee’s brief: The government’s 3,972-word

appellee brief cites 11 published opinions (one by

the U.S. Supreme Court and 10 by the Fifth Circuit).

Opinion: (2) The court’s 207-word unpublished

per curiam summary opinion, United States v. Sillemon, 82 Fed. Appx. 976, 2003 WL 22955877 (5th

Cir. 2003) (no headnotes), cites three published

Fifth Circuit opinions. According to Westlaw

(02/10/2005), the court’s opinion has not been

cited elsewhere.

Craig v. Cockrell (5th Cir. 02–20119, filed

02/01/2002, judgment 04/23/2002).

Appeal from: Southern District of Texas.

What happened: Pro se prisoner appeal—

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Martin v. City of Pasadena (5th Cir. 02–20662,

filed 06/18/2002, judgment 07/08/2003).

Appeal from: Southern District of Texas.

What happened: A city voluntarily dismissed its

appeal of summary judgment in favor of a plaintiff who challenged the city’s removal of a fundraising brick and bench honoring the plaintiff’s

brother, whom the city objected to her honoring

because he had killed a police officer.

Appellant’s brief: The city’s 4,933-word appellant brief cites 15 published opinions (nine by the

U.S. Supreme Court, two by the Fifth Circuit, two

by other circuits, and two by districts in other circuits) and one historical book.

Appellee’s brief: The plaintiff’s 4,188-word appellee brief cites 18 published opinions (seven by

the U.S. Supreme Court, four by the Fifth Circuit,

six by other circuits, and one by a district in another circuit).

Appellant’s reply brief: The appellant’s 1,194-

word reply brief cites four published opinions by

other circuits.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Giraldo (5th Cir. 02–20694, filed

06/24/2002, judgment 08/06/2002).

Appeal from: Southern District of Texas.

What happened: Pro se prisoner appeal dismissed for lack of jurisdiction.

Related cases: Three related cases were dismissed: United States v. Giraldo (5th Cir. 99–20646,

filed 07/12/1999, judgment 02/07/2000), United

States v. Giraldo (5th Cir. 96–20029, filed

01/12/1996, judgment 02/06/1996), and United

States v. Giraldo (5th Cir. 93–2644, docket sheet not

available). One related case, United States v. Giraldo (5th Cir. 96–20390, filed 04/24/1996, judgment 04/11/1997), was affirmed, United States v.

Giraldo, 111 F.3d 21 (5th Cir. 1997).

Opinion: (1) The court’s docket judgment cites

no opinions.

Vilandos v. Sam’s Club Wal-Mart Stores Inc. (5th

Cir. 02–20762, filed 07/15/2002, judgment

04/03/2003).

Appeal from: Southern District of Texas.

What happened: Unsuccessful appeal of summary judgment awarded to a store in an action for

false imprisonment of a suspected shoplifter.

Appellant’s brief: The shopper’s 9,463-word appellant brief cites 22 published opinions (two by

the U.S. Supreme Court, eight by the Fifth Circuit,

seven by Texas’s supreme court, and five by

Texas’s courts of appeals), one unpublished opinion by Texas’s court of appeals, and the Restatement (Second) of Torts.

Fourteen lines of the plaintiff’s appellant brief

discuss the cited unpublished opinion by a Texas

court of appeals. (Page 29.) The facts in the cited

opinion are used to argue how much time it is

reasonable to detain a shopper who is accused of

shoplifting.

Appellee’s brief: The store’s 6,487-word appellee

brief cites 46 published opinions (three by the U.S.

Supreme Court, 20 by the Fifth Circuit, nine by

other circuits, nine by Texas’s supreme court, and

five by Texas’s courts of appeals) and the Restatement (Second) of Torts.

Appellant’s reply brief: The shopper’s 2,893-

word reply brief cites seven published opinions

(one by the U.S. Supreme Court, three by the Fifth

Circuit, two by Texas’s supreme court, and one by

Texas’s court of appeals).
Citing Unpublished Opinions in Federal Appeals

184

Opinion: (2) The court’s unpublished 164-word

per curiam opinion, Vilandos v. Sam’s Club WalMart, 65 Fed. Appx. 509, 2003 WL 1923003 (5th

Cir. 2003) (no headnotes), cites two published

Fifth Circuit opinions. According to Westlaw

(02/02/2005), the court’s opinion has not been

cited elsewhere.

Crooks v. Thomas (5th Cir. 02–21091, filed

10/10/2002, judgment 10/27/2003).

Appeal from: Southern District of Texas.

What happened: Unsuccessful pro se prisoner

appeal of summary judgment against a section

1983 civil rights action. The courts concluded that

the prisoner’s failure to receive notice of the motion was harmless error.

Appellee’s brief: The defendant’s 7,186-word

appellee brief cites 46 published opinions (five by

the U.S. Supreme Court, 39 by the Fifth Circuit,

and two by other circuits).

Opinion: (2) The court’s unpublished 1,266-

word per curiam opinion, Crooks v. Thomas, 78

Fed. Appx. 981, 2003 WL 22430743 (5th Cir. 2003)

(two headnotes), cites seven published opinions

(two by the U.S. Supreme Court and five by the

Fifth Circuit). According to Westlaw

(02/10/2005), the court’s opinion has not been

cited elsewhere.

Hamburger v. State Farm Mutual Automobile

Insurance Co. (5th Cir. 02–21126, filed 10/14/2002,

judgment 03/02/2004).

Appeal from: Southern District of Texas.

What happened: Partially successful appeal by

the plaintiff in an action for insurance benefits for

an automobile accident.

Related case: Hamburger v. State Farm Mutual

Automobile Insurance Co. (5th Cir. 02–21184, filed

10/30/2002, judgment 03/02/2004) (crossappeal).

Appellant’s brief: The plaintiff’s 14,236-word

appellant brief cites 40 published opinions (three

by the U.S. Supreme Court, 15 by the Fifth Circuit,

seven by other circuits, four by districts in other

circuits, five by Texas’s supreme court, and six by

Texas’s courts of appeals) and one unpublished

opinion by a Fifth Circuit district.

The brief cites the unpublished opinion—an

opinion by the Northern District of Texas—to

support the statement, “Thus, the focus of a bad

faith inquiry is on the reasonableness of the insurer’s conduct in rejecting or delaying payment of

the claim, which is determined by viewing the facts

available to the insurer at the time of denial.” (Page

32.)

Appellee’s brief: The insurance company’s

12,994-word appellee and cross-appellant brief

cites 57 published opinions (four by the U.S. Supreme Court, 12 by the Fifth Circuit, four by other

circuits, one by the Southern District of Texas, 20

by Texas’s supreme court, and 16 by Texas’s

courts of appeals).

Appellant’s reply brief: The plaintiff’s 2,944-

word reply brief cites six published opinions (four

by Texas’s supreme court and two by Texas’s

courts of appeals).

Cross-appellant’s reply brief: The insurance company’s 1,339-word reply brief cites no opinions.

Opinion: (3) The court’s published 7,489-word

signed opinion and partial dissent, Hamburger v.

State Farm Mutual Automobile Insurance Co., 361

F.3d 875 (5th Cir. 2004) (18 headnotes), cites 34

published opinions (one by the U.S. Supreme

Court, nine by the Fifth Circuit, two by other circuits, nine by Texas’s supreme court, and 13 by

Texas’s courts of appeals). According to Westlaw

(02/10/2005), the court’s opinion has been cited

in six district court opinions by Fifth Circuit districts (one published and five unpublished), one

unpublished district court opinion by a district in

another circuit, 10 secondary sources, two appellate briefs in two cases before Texas courts, and 12

trial court briefs in 10 district court cases (seven in

Fifth Circuit districts and three in districts in other

circuits).

United States v. Whitelaw (5th Cir. 02–21273,

filed 11/22/2002, judgment 07/07/2003).

Appeal from: Southern District of Texas.

What happened: Pro se prisoner appeal—

certificate of appealability denied.

Related case: United States v. Whitelaw (5th Cir.

99–20665, filed 07/19/1999, judgment

12/21/2000) (conviction affirmed).

Opinion: (1) The court’s docket judgment cites

no opinions.

Charles v. Greenburg (5th Cir. 02–30203, filed

02/25/2002, judgment 01/22/2003).

Appeal from: Eastern District of Louisiana.

What happened: Plaintiff’s civil rights appeal

dismissed as settled.

Opinion: (1) The court’s docket judgment cites

no opinions.

Forrest v. Cain (5th Cir. 02–30277, filed

03/20/2002, judgment 10/28/2002).

Appeal from: Eastern District of Louisiana.

What happened: Pro se prisoner appeal—

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.
Citing Unpublished Opinions in Federal Appeals

185

United States v. Green (5th Cir. 02–30729, filed

07/24/2002, judgment 03/11/2003).

Appeal from: Middle District of Louisiana.

What happened: Unsuccessful criminal appeal of

a conviction for possession of a gun by a felon.

The court of appeals rejected the defendant’s argument that he should have been permitted a justification jury instruction, because there was no

evidentiary foundation for it.

Appellant’s brief: The defendant’s 5,914-word

brief cites 24 published opinions (four by the U.S.

Supreme Court, 13 by the Fifth Circuit, and seven

by other circuits).

Appellee’s brief: The government’s 4,198-word

amended brief cites 17 published opinions (one by

the U.S. Supreme Court, 13 by the Fifth Circuit,

and three by other circuits).

Opinion: (2) The court’s unpublished 235-word

per curiam summary opinion, tabled at United

States v. Green, 64 Fed. Appx. 416, 2003 WL

1524562 (5th Cir. 2003), cites five published Fifth

Circuit opinions. According to Westlaw

(02/10/2005), the court’s opinion has not been

cited elsewhere.

Douglas v. City of Baton Rouge (5th Cir. 02–

30846, filed 08/22/2002, judgment 08/15/2003).

Appeal from: Middle District of Louisiana.

What happened: Unsuccessful pro se appeal of

the district court’s refusal to appoint counsel for

plaintiffs in a civil rights case.

Opinion: (2) The court’s unpublished 342-word

per curiam summary opinion, Douglas v. City of

Baton Rouge, 71 Fed. Appx. 376, 2003 WL 21954207

(5th Cir. 2003) (no headnotes), cites four published

Fifth Circuit opinions. According to Westlaw

(02/10/2005), the court’s opinion has not yet been

cited elsewhere.

Associated Marine Equipment LLC v. Jin Yi

Shipping Inc. (5th Cir. 02–30928, filed 09/16/2002,

judgment 10/10/2002).

Appeal from: Eastern District of Louisiana.

What happened: Plaintiff’s civil marine appeal

voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Deville v. Barnhart (5th Cir. 02–30936, filed

09/17/2002, judgment 10/23/2002).

Appeal from: Western District of Louisiana.

What happened: Plaintiff’s Social Security appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Branch v. Cain (5th Cir. 02–30946, filed 9/18/2002,

judgment 04/23/2003).

Appeal from: Middle District of Louisiana.

What happened: Pro se prisoner appeal—

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Hernandez (5th Cir. 02–30967,

filed 09/23/2002, judgment 01/31/2003).

Appeal from: Western District of Louisiana.

What happened: Certificate of appealability denied.

Related cases: Prior cases include an affirmance

on direct appeal of a conviction for armed bank

robbery, United States v. Hernandez (5th Cir. 98-

30925, filed 08/31/1998, judgment 01/10/2000),

and a dismissal for lack of jurisdiction, United

States v. Hernandez (5th Cir. 02–30827, filed

08/19/2002, judgment 09/04/2002).

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Mendizabal (5th Cir. 02–40104, filed

01/24/2002, judgment 05/07/2002).

Appeal from: Eastern District of Texas.

What happened: Motion for permission to file a

successive habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Caballero-Rodriguez (5th Cir.

02–40229, filed 02/13/2002, judgment 02/20/2003).

Appeal from: Southern District of Texas.

What happened: Criminal conviction for violating terms of supervised release summarily affirmed.

Related case: The appeal was consolidated with

United States v. Milla-Rodriguez (5th Cir. 02–40111,

filed 01/26/2002, judgment 02/20/2003), an appeal by the same defendant under a different

name of a conviction for being in the United

States after deportation.

The defendant acknowledged that the issue

raised on appeal pertained only to the second case

and was foreclosed by Fifth Circuit precedent, but

was raised to preserve it for U.S. Supreme Court

review. The court of appeals rejected the constitutional challenge to the sentencing provisions.

Appellant’s brief: The defendant’s 3,948-word

brief cites 18 published opinions (11 by the U.S.

Supreme Court, six by the Fifth Circuit, and one

by another circuit).

Opinion: (2) The court’s unpublished 276-word

per curiam opinion, tabled at United States v. Caballero-Rodriguez, 61 Fed. Appx. 921, 2003 WL

1105864 (5th Cir. 2003), cites three published opin-
Citing Unpublished Opinions in Federal Appeals

186

ions (two by the U.S. Supreme Court and one by

the Fifth Circuit). According to Westlaw

(02/10/2005), the court’s opinion has not been

cited elsewhere.

Caldwell v. Cockrell (5th Cir. 02–40400, filed

03/15/2002, judgment 04/03/2002).

Appeal from: Eastern District of Texas.

What happened: Pro se prisoner appeal dismissed for lack of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

Evett v. Graham (5th Cir. 02–40686, filed

05/07/2002, judgment 05/12/2003).

Appeal from: Eastern District of Texas.

What happened: In a claim for false arrest, the

court of appeals affirmed a denial of qualified

immunity to the arresting officer, but reversed the

denial of immunity to his supervisor.

Appellant’s brief: The police officers’ 4,860-word

brief cites 29 published opinions (10 by the U.S.

Supreme Court, 16 by the Fifth Circuit, one by

another circuit, one by Texas’s court of criminal

appeals, and one by Texas’s court of appeals).

Appellee’s brief: The plaintiffs’ 4,371-word brief

cites 34 published opinions (14 by the U.S. Supreme Court, 19 by the Fifth Circuit, and one by

another circuit).

Appellant’s reply brief: The defendants’ 2,033-

word reply brief cites 15 published opinions (five

by the U.S. Supreme Court, eight by the Fifth Circuit, one by Texas’s court of criminal appeals, and

one by Texas’s court of appeals).

Opinion: (3) The court’s published 4,081-word

signed opinion, Evett v. DETNTFF, 330 F.3d 681

(5th Cir. 2003) (12 headnotes), cites 12 published

opinions (one by the U.S. Supreme Court and 11

by the Fifth Circuit). According to Westlaw

(02/10/2005), the court’s opinion has been cited

in two unpublished Fifth Circuit opinions, one

published opinion by another circuit, one published opinion by the Eastern District of Texas,

three unpublished opinions by other Fifth Circuit

districts, eight secondary sources, 10 appellate

briefs in seven Fifth Circuit cases, and 18 trial

court briefs in 15 cases (14 in Fifth Circuit districts

and one in a district in another circuit).

Gutierrez v. Ornelas (5th Cir. 02–40693, filed

05/08/2002, judgment 11/07/2002).

Appeal from: Southern District of Texas.

What happened: Unsuccessful pro se prisoner

appeal.

Appellee’s brief: The defendant’s 1,644-word

brief cites 10 published opinions (four by the U.S.

Supreme Court, three by the Fifth Circuit, and

three by other circuits).

Opinion: (2) The court’s unpublished 378-word

per curiam summary opinion, Gutierrez v. Ornelas,

54 Fed. Appx. 413, 2002 WL 31718270 (5th Cir.

2002) (no headnotes), cites 10 published opinions

(nine by the Fifth Circuit and one by a district in

another circuit). According to Westlaw

(02/02/2005), the court’s opinion has not been

cited elsewhere.

Moody v. Cockrell (5th Cir. 02–40758, filed

05/20/2002, judgment 09/17/2002).

Appeal from: Eastern District of Texas.

What happened: Pro se prisoner appeal—

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Brooks (5th Cir. 02–40912, filed

06/21/2002, judgment 10/15/2002)

Appeal from: Eastern District of Texas.

What happened: Criminal appeal dismissed for

failure to order a transcript. One month before the

dismissal, the appellant’s appointed attorney was

permitted to withdraw.

Opinion: (1) The court’s docket judgment cites

no opinions.

Shoemaker v. UNOVA Inc. (5th Cir. 02–40958,

filed 06/27/2002, judgment 05/28/2003).

Appeal from: Eastern District of Texas.

What happened: Unsuccessful appeal of the defendant’s summary judgment by former executives of a subsidiary of the defendant suing for

unpaid bonuses. After briefly describing the nature of the case, the court of appeals affirmed “essentially for the reasons given by the district

court.” (Page 2.)

Appellant’s brief: The plaintiffs’ 7,108-word appellant brief cites 24 published opinions (one by

the U.S. Supreme Court, three by the Fifth Circuit,

three by other circuits, one by the district court

and one by the bankruptcy court in a district in

another circuit, seven by Texas’s supreme court,

four by Texas’s courts of appeals, two by Alabama’s supreme court, one by New Jersey’s superior court, and one by Ohio’s court of appeals).

Appellee’s brief: The defendant’s 7,340-word

appellee brief cites 44 published opinions (one by

the U.S. Supreme Court, eight by the Fifth Circuit,

one by another circuit, one by a Fifth Circuit district, 15 by Texas’s supreme court, 17 by Texas’s

courts of appeals, and one by Ohio’s court of appeals).

Appellant’s reply brief: The plaintiffs’ 2,119-

word reply brief cites eight published opinions
Citing Unpublished Opinions in Federal Appeals

187

(two by the Fifth Circuit, one by another circuit,

one by a district in another circuit, one by Texas’s

supreme court, two by Texas’s courts of appeals,

and one by Ohio’s court of appeals).

Opinion: (2) The court’s unpublished 214-word

per curiam opinion, Shoemaker v. UNOVA Inc., 69

Fed. Appx. 658, 2003 WL 21356029 (5th Cir. 2003)

(no headnotes), cites no opinions. According to

Westlaw (02/02/2005), the court’s opinion has not

been cited elsewhere.

United States v. Alonzo (5th Cir. 02–41049, filed

07/25/2002, judgment 02/26/2003).

Appeal from: Southern District of Texas.

What happened: Unsuccessful pro se appeal of

the denial of a sentence modification.

Related case: United States v. Alonzo (5th Cir. 01–

40391, filed 04/13/2001, judgment 01/02/2002)

(unsuccessful criminal appeal).

Appellee’s brief: The government’s 4,399-word

appellee brief cites 15 published opinions (two by

the U.S. Supreme Court and 13 by the Fifth Circuit).

Opinion: (2) The court’s unpublished 336-word

per curiam summary opinion, United States v.

Alonzo, 62 Fed. Appx. 556, 2003 WL 1202782 (5th

Cir. 2003) (no headnotes), cites two published

Fifth Circuit opinions. According to Westlaw

(02/02/2005), the court’s opinion has not been

cited elsewhere.

Hamilton v. Cockrell (5th Cir. 02–41050, filed

07/25/2002, judgment 01/27/2003).

Appeal from: Eastern District of Texas.

What happened: Pro se prisoner appeal—

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Coburn Supply Co. v. Kohler Co. (5th Cir. 02–

41317, filed 09/18/2002, judgment 08/06/2003).

Appeal from: Eastern District of Texas.

What happened: Successful civil appeal by the

manufacturer of plumbing products in an action

by a distributor for breach of a distribution contract.

Appellant’s brief: The defendant’s 12,681-word

appellant brief cites 40 published opinions (18 by

the Fifth Circuit, two by other circuits, two by districts in other circuits, seven by Texas’s supreme

court, nine by Texas’s courts of appeals, one by

Kentucky’s court of appeals, and one by Massachusetts’s appeals court), one unpublished opinion by a district in another circuit, and the Restatement (Second) of Torts.

The brief devotes 21 lines of text, encompassing two paragraphs, to an unpublished decision

by the District of Massachusetts concerning reasonable notice in terminating a contract to distribute dental equipment.

Appellee’s brief: The plaintiff’s 14,495-word appellee brief cites 37 published opinions (20 by the

Fifth Circuit, four by other circuits, five by Texas’s

supreme court, one by Texas’s commission of appeals, five by Texas’s courts of appeals, one by

Kentucky’s court of appeals, and one by Massachusetts’s appeals court).

Appellant’s reply brief: The defendant’s 6,534-

word reply brief cites 19 published opinions (six

by the Fifth Circuit, three by other circuits, two by

districts in other circuits, three by Texas’s supreme court, three by Texas’s courts of appeals,

one by Kentucky’s court of appeals, and one by

Massachusetts’s appeals court) and one unpublished opinion by a Texas court of appeals.

The brief identifies an unpublished opinion by

a Texas court of appeals as a “particularly demonstrative example from Texas case law” and cites

its holding that “implied duration provisions apply only to ‘exclusive franchise or distributorship

agreements’ in order to protect a ‘vulnerable franchisee from loss.’” (Pages 13–14.)

Opinion: (3) The court’s published 2,845-word

signed opinion, Coburn Supply Co. v. Kohler Co.,

342 F.3d 372 (5th Cir. 2003) (eight headnotes), cites

17 published opinions (four by the Fifth Circuit,

one by another circuit, two by districts in the Fifth

Circuit, four by Texas’s supreme court, five by

Texas’s courts of appeals, and one by Massachusetts’s appeals court) and the Restatement (Second)

of Torts. According to Westlaw (02/10/2005), the

court’s opinion has been cited in one unpublished

Fifth Circuit opinion, nine secondary sources,

seven appellate briefs in four cases (three in the

Fifth Circuit and one in another circuit), and six

trial court briefs in three cases (two in Fifth Circuit

districts and one in a district in another circuit).

Kadlec v. Tran (5th Cir. 02–41453, filed

10/17/2002, judgment 11/25/2002).

Appeal from: Southern District of Texas.

What happened: Pro se prisoner appeal dismissed for failure to pay the docketing fee.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Gomez (5th Cir. 02–50055, filed

01/18/2002, judgment 04/18/2002).

Appeal from: Western District of Texas.

What happened: Pro se prisoner appeal—

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.
Citing Unpublished Opinions in Federal Appeals

188

Judd v. United States District Court (5th Cir. 02–

50503, filed 05/15/2002, judgment 06/25/2002).

Appeal from: Western District of Texas.

What happened: Pro se prisoner appeal dismissed as violating sanctions imposed in Judd v.

University of New Mexico (5th Cir. 98–51060, filed

11/03/1998, judgment 05/13/1999) (courts of the

circuit directed to refuse pro se filings from this

prisoner until he satisfies a $105 sanction) and

Judd v. United States District Court (5th Cir. 98–

51118, filed 11/20/1998, judgment 11/09/2000)

(same).

Related cases: Other related actions according to

the docket sheet are Judd v. United States District

Court (5th Cir. 98–51119, filed 11/20/1998, judgment 04/16/1999), Judd v. United States District

Court (5th Cir. 98–51135, filed 11/30/1998, judgment 02/05/1999), Judd v. United States District

Court (5th Cir. 98–5115, filed 12/03/1998, judgment 04/16/1999), Judd v. United States District

Court (5th Cir. 98–51195, filed 12/17/1998, judgment 12/01/2000), Judd v. United States District

Court (5th Cir. 98–51207, filed 12/21/1998, judgment 03/03/1999), Judd v. United States District

Court (5th Cir. 99–50023, filed 01/12/1999, judgment 09/22/1999), Judd v. United States District

Court (5th Cir. 99–50479, filed 05/14/1999, judgment 06/21/1999), Judd v. United States District

Court (5th Cir. 99–50480, filed 05/14/1999, judgment 06/21/1999), Judd v. United States District

Court (5th Cir. 99–50481, filed 05/14/1999, judgment 06/17/1999), Judd v. United States District

Court (5th Cir. 00–50898, filed 09/20/2000, judgment 10/25/2000), Judd v. United States District

Court (5th Cir. 00–51345, filed 12/29/2000, judgment 02/26/2001), Judd v. United States District

Court (5th Cir. 01–50047, filed 01/12/2001, judgment 02/26/2001), Judd v. United States District

Court (5th Cir. 01–50138, filed 02/07/2001, judgment 03/15/2001), Judd v. United States District

Court (5th Cir. 01–50139, filed 02/07/2001, judgment 03/15/2001), Judd v. United States District

Court (5th Cir. 01–50252, filed 03/21/2001, judgment 04/24/2001).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Andazola-Quezada (5th Cir. 02-

50579, filed 06/10/2002, judgment 02/19/2003).

Appeal from: Western District of Texas.

What happened: Unsuccessful pro se appeal that

sought retroactive application of changes to the

sentencing guidelines.

Opinion: (2) The court’s 220-word unpublished

per curiam opinion, tabled at United States v. Andazola-Quezada, 61 Fed. Appx. 919, 2003 WL

1112349 (5th Cir. 2003), cites four published opinions (two by the U.S. Supreme Court and two by

the Fifth Circuit). According to Westlaw

(02/10/2005), the court’s opinion has not been

cited elsewhere.

United States v. Barnes (5th Cir. 02–50703, filed

07/12/2002, judgment 10/09/2002).

Appeal from: Western District of Texas.

What happened: Pro se prisoner appeal dismissed for failure to pay the docketing fee.

Related case: United States v. Barnes (5th Cir. 02–

50661, filed 06/28/2002, judgment 02/20/2003)

(certificate of appealability denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Hernandez-Tenorio (5th Cir. 02–

50995, filed 09/17/2002, judgment 09/23/2004).

Appeal from: Western District of Texas.

What happened: Unsuccessful appeal of a conviction for importing $35 million worth of marijuana and cocaine. The court ruled that a reasonable jury could disbelieve the defendants’ defense

that they did not know the drugs were hidden in

the bus they drove.

Related case: Briefs for this case bear the case

number of the codefendant’s appeal, United States

v. Cervantes-Moscoso (5th Cir. 02–50884, filed

08/20/2002, judgment 09/23/2004), which was

filed first.

Appellant’s brief: The defendant’s 7,502-word

brief cites 71 published opinions (one by the U.S.

Supreme Court, 53 by the Fifth Circuit, and 17 by

other circuits).

Appellee’s brief: The government’s 10,417-word

brief cites 35 published opinions (32 by the Fifth

Circuit and three by other circuits).

Opinion: (2) The court’s unpublished 603-word

per curiam summary opinion, United States v. Cervantes-Moscoso, 108 Fed. Appx. 990, 2004 WL

2137354 (5th Cir. 2004) (one headnote), cites six

published Fifth Circuit opinions. According to

Westlaw (02/10/2005), the court’s opinion has not

been cited elsewhere.

United States v. Alarcon-Lechuga (5th Cir. 02–

51046, filed 09/28/2002, judgment 04/23/2003).

Appeal from: Western District of Texas.

What happened: Criminal conviction summarily

affirmed on the government’s motion.

Appellant’s brief: The defendant’s 2,070-word

brief cites 13 published opinions (seven by the

U.S. Supreme Court and six by the Fifth Circuit).

Opinion: (2) The court’s unpublished 332-word

per curiam opinion, tabled at United States v. Alarcon-Lechuga, 67 Fed. Appx. 244, 2003 WL 21142511
Citing Unpublished Opinions in Federal Appeals

189

(5th Cir. 2003), cites three published opinions (two

by the U.S. Supreme Court and one by the Fifth

Circuit). According to Westlaw (02/10/2005), the

court’s opinion has not been cited elsewhere.

In re Kearns (5th Cir. 02–51258, filed 11/20/2002,

judgment 01/10/2003).

Appeal from: Western District of Texas.

What happened: Pro se petition for writ of mandamus dismissed for failure to file a motion for in

forma pauperis status.

Related cases: United States v. Kearns (5th Cir. 02-

51088, filed 10/09/2002, judgment 03/21/2003)

(dismissed for failure to file a brief) and United

States v. Kearns (5th Cir. 02-51128, filed

10/21/2002, judgment 03/21/2003) (same).

Opinion: (1) The court’s docket judgment cites

no opinions.

De la Cruz-Jimenez v. Ashcroft (5th Cir. 02–60059,

filed 01/28/2002, judgment 05/10/2002).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

for lack of jurisdiction.

Opinion: (1) The court’s docket judgment cites

no opinions.

Al Sharifee v. Ashcroft (5th Cir. 02–60174, filed

03/15/2002, judgment 07/16/2002).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

for failure to file a brief.

Opinion: (1) The court’s docket judgment cites

no opinions.

Callahan v. BancorpSouth Insurance Services of

Mississippi, Inc. (5th Cir. 02–60269, filed

04/16/2002, judgment 02/04/2003).

Appeal from: Southern District of Mississippi.

What happened: Unsuccessful appeal of a judgment against an employment discrimination

plaintiff. The court stated that “further writing

beyond the careful and well-written opinion and

order of the district court is not required.”

Appellant’s brief: The employee’s 8,024-word

appellant brief cites 27 published opinions (five

by the U.S. Supreme Court, 11 by the Fifth Circuit,

six by other circuits, and five by district courts

outside the Fifth Circuit).

Appellee’s brief: The employers’ 7,107-word appellee brief cites 21 published opinions (three by

the U.S. Supreme Court, 12 by the Fifth Circuit,

three by other circuits, two by the Southern District of Mississippi, and one by another Fifth Circuit district).

Appellant’s reply brief: The employee’s 2,447-

word reply brief cites 13 published opinions

(three by the U.S. Supreme Court, five by the Fifth

Circuit, three by other circuits, and two by districts in other circuits).

Opinion: (2) The court’s unpublished 135-word

per curiam summary opinion, tabled at Callahan v.

Bancorpsouth Insurance, 61 Fed. Appx. 121, 2003

WL 342343 (5th Cir. 2003), cites no opinions. According to Westlaw (02/10/2005), the court’s

opinion has been cited in one unpublished opinion by a Fifth Circuit district.

Estate of Burris v. Commissioner of Internal

Revenue (5th Cir. 02–60315, filed 04/29/2002,

judgment 08/29/2002).

Appeal from: United States Tax Court.

What happened: Commissioner’s appeal of a tax

court judgment in favor of an estate voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Wilson v. Fancher (5th Cir. 02–60401, filed

05/22/2002, judgment 10/02/2002).

Appeal from: Southern District of Mississippi.

What happened: Pro se prisoner appeal—

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Nelson v. City of Greenville (5th Cir. 02–60487,

filed 06/18/2002, judgment 10/25/2002).

Appeal from: Northern District of Mississippi.

What happened: Appeal in an employment discrimination case dismissed for lack of jurisdiction,

apparently on ripeness grounds.

Opinion: (1) The court’s docket judgment cites

no opinions.

Lozano-De la Torre v. Ashcroft (5th Cir. 02–

60497, filed 06/21/2002, judgment 10/23/2002).

Appeal from: Board of Immigration Appeals.

What happened: Pro se immigration appeal

dismissed for lack of jurisdiction.

Opinion: (1) The court’s docket judgment cites

no opinions.

Brewer v. Jackson (5th Cir. 02–60651, filed

08/08/2002, judgment 09/12/2002).

Appeal from: Southern District of Mississippi.

What happened: Prisoner appeal dismissed for

failure to pay the filing fee.

Opinion: (1) The court’s docket judgment cites

no opinions.

Pride Ford Lincoln Mercury v. Motors Insurance

Corp. (5th Cir. 02–60956, filed 11/15/2002,

judgment 11/05/2003).

Appeal from: Northern District of Mississippi.
Citing Unpublished Opinions in Federal Appeals

190

What happened: Successful appeal in an insurance company coverage case of the district court’s

refusal to permit the jury to award punitive damages.

Appellant’s brief: The plaintiff’s 13,713-word

appellate brief cites 37 published opinions (one by

the U.S. Supreme Court, 18 by the Fifth Circuit,

two by the Northern District of Mississippi, one

by another Fifth Circuit district, 14 by Mississippi’s supreme court, and one by South Carolina’s supreme court) and one law review article.

Appellee’s brief: The defendant’s 3,775-word

appellee brief cites 17 published opinions (five by

the Fifth Circuit, one by the Northern District of

Mississippi, one by another Fifth Circuit district,

and 10 by Mississippi’s supreme court).

Appellant’s reply brief: The plaintiff’s 6,666-

word reply brief cites 27 published opinions (one

by the U.S. Supreme Court, nine by the Fifth Circuit, two by the Northern District of Mississippi,

one by another Fifth Circuit district, and 14 by

Mississippi’s supreme court).

Opinion: (2) The court’s unpublished 1,194-

word per curiam opinion, Pride Ford Lincoln Mercury Inc. v. Motors Insurance Corp., 80 Fed. Appx.

329, 2003 WL 22508427 (5th Cir. 2003) (two headnotes), cites six published opinions (five by the

Fifth Circuit and one by Mississippi’s supreme

court). According to Westlaw (02/10/2005), the

court’s opinion has not been cited elsewhere.

Bolomope v. Ashcroft (5th Cir. 02–61137, filed

12/26/2002, judgment 08/04/2003).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal voluntarily

withdrawn.

Petitioner’s brief: The petitioner’s 1,038-word

brief cites one U.S. Supreme Court opinion.

Opinion: (1) The court’s docket judgment cites

no opinions.

6. Sixth Circuit

93

The Sixth Circuit disfavors citation to an unpublished opinion in an unrelated case, but

 

93. Docket sheets are on PACER. Published opinions are on the court’s website, its intranet site, and

Westlaw. Unpublished opinions are on Westlaw and

most of them are also on the court’s intranet site. (Of

the 19 unpublished opinions resolving cases in this

sample, 16 are on the court’s intranet site. One of them

is also on the court’s website.) Briefs are not available

electronically.

permits it if the opinion has “precedential

value” and there is no published opinion on

point.

94

Of the 50 cases randomly selected, 46 are

appeals from district courts (12 from the Eastern District of Michigan; seven from the

Northern District of Ohio; five from the

Western District of Michigan; four each from

the Eastern District of Kentucky, the Western

District of Kentucky, the Eastern District of

Tennessee, and the Western District of Tennessee; and three each from the Southern District of Ohio and the Middle District of Tennessee), two are appeals from the United

States Tax Court, and two are appeals from

the Board of Immigration Appeals.

95

The publication rate in this sample is

12%. Six of the cases were resolved by published signed opinions (one with a dissent),

19 were resolved by unpublished opinions

published in the Federal Appendix (including

six signed opinions, three per curiam opinions, and 10 orders), and 25 were resolved by

docket judgments.

Published opinions averaged 3,592

words in length, ranging from 1,602 to 5,095.

Unpublished opinions averaged 1,467 words

in length, ranging from 508 to 4,497. Ten

opinions were under 1,000 words in length

 

94. 6th Cir. L.R. 28(g) (“Citation of unpublished decisions in briefs and oral arguments in this Court and in

the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case. If a party believes, nevertheless, that an unpublished disposition 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 decision may be cited if that party serves a copy

thereof on all other parties in the case and on this

Court.”).

The court adopted a rule prohibiting citation to unpublished opinions effective April 11, 1973. The court

amended its rules effective February 1, 1982, to permit

citation to unpublished opinions if there is no published opinion on point.

95. In 2002, 4,612 cases were filed in the court of appeals for the Sixth Circuit.
Citing Unpublished Opinions in Federal Appeals

191

(40%, all unpublished), and none of them was

under 500 words in length.

Eighteen of the appeals were fully

briefed. In 24 of the appeals no counseled

brief was filed, and in eight of the appeals a

counseled brief was filed only for one side.

There are citations to unpublished court

opinions in 16 of the cases. In four cases the

citations are only to opinions in related cases;

in 12 cases there are citations to unpublished

opinions in unrelated cases. In four cases the

court cited unrelated unpublished opinions;

in eight other cases only the parties cited unrelated unpublished opinions.

Of the unrelated unpublished opinions

cited by the court in these cases, three are by

the court of appeals for the Sixth Circuit and

one is by a district court in another circuit. Of

the unrelated unpublished opinions cited by

the parties in these cases, 51 are by the court

of appeals for the Sixth Circuit, four are by

district courts in the Sixth Circuit, five are by

district courts in other circuits, three are by

the United States Tax Court, and three are by

state courts.

C6–1. In an unsuccessful appeal of summary judgment by the district court for the

Western District of Michigan in favor of a

sheriff’s department that denied nonemergency services to the plaintiff who complained about his neighbor, a senior officer

on the force, Klimik v. Kent County Sheriff’s

Department (6th Cir. 02–1774, filed

06/21/2002, judgment 01/30/2004), resolved

by unpublished opinion at 91 Fed. Appx. 396,

2004 WL 193168, the court quoted a specification from one of its other unpublished opinions as to how a “class of one” can be established.

In its appellee brief, the sheriff’s department cited an unpublished opinion by

the district court for the Western District of

Michigan as an opinion relied on by the district court in this case, an opinion holding

that a sheriff’s department is not a legal entity subject to suit. The brief identifies five

opinions cited by the district judge in the unpublished opinion, including an unpublished

Sixth Circuit opinion.

C6–2. In a successful appeal of summary

judgment for the postal service in an employment discrimination case, Smith v. United

States Postal Service (6th Cir. 02–6073, filed

09/06/2002, judgment 07/15/2004), resolved

by published opinion at Smith v. Henderson,

376 F.3d 529 (6th Cir. 2004), the court cited

one of its unpublished opinions and the Code

of Federal Regulations to support a statement

that there was a material issue of fact

whether a letter was a request for reasonable

accommodations. The citation acknowledges

the unpublished opinion’s citation to a published opinion by a court of appeals for another circuit.

C6–3. In an unsuccessful pro se plaintiff’s employment discrimination appeal,

Moore v. Potter (6th Cir. 02–5465, filed

04/17/2002, judgment 09/18/2002), resolved

by unpublished opinion at 47 Fed. Appx. 318,

2002 WL 31096673, the court cited an unpublished Sixth Circuit order along with two U.S.

Supreme Court opinions to support a statement that courts apply the state personal injury limitation period to Rehabilitation Act

claims.

C6–4. In an unsuccessful pro se tax appeal, Hauck v. Commissioner of Internal Revenue

(6th Cir. 02–2301, filed 11/05/2002, judgment

05/02/2003), resolved by unpublished order

at 64 Fed. Appx. 492, 2003 WL 21005238, the

court cited an unpublished opinion by the

district court for the Western District of Texas

to support a statement that a computerized

reporting system established by the Internal

Revenue Service has replaced Form 23C,

which was used before 1984.

In its appellee brief, the government

cited six unpublished opinions—three by district courts and three by the United States Tax

Court. The brief cites unpublished opinions

by the district courts for the District of Nevada, the Northern District of Oklahoma, and
Citing Unpublished Opinions in Federal Appeals

192

the Eastern District of Virginia to rebut the

taxpayer’s argument that Form 23C is the

only authorized assessment form. The brief

cites three unpublished Tax Court memoranda to support the position that the government may rely on a non-certified transcript of account to verify a tax assessment.

C6–5. The State of Michigan cited 31 unpublished opinions in unrelated cases in its

appellee brief in an unsuccessful pro se appeal by a prisoner of the district court for the

Eastern District of Michigan’s judgment

awarding costs to the defendants, Jones v.

Kolb (6th Cir. 02–2112, filed 09/13/2002,

judgment 12/10/2003), resolved by unpublished order at 84 Fed. Appx. 560, 2003 WL

23095569.

The brief discusses four unpublished

Sixth Circuit opinions to support a statement

that “In a number of unpublished decisions,

this Court has addressed what constitutes

meritless claims, grievances, or lawsuits.”

The brief cites another unpublished

Sixth Circuit opinion as stating that “this

Court for the second time announced what

should be an absolute rule: ‘a finding of guilt

based upon some evidence of a violation of

prison rules “essentially checkmates [a] retaliation claim.”‘“ The brief notes that the

unpublished opinion cites a published opinion by the Eighth Circuit and the brief cites

another unpublished opinion by the Sixth

Circuit as quoting the Eighth Circuit opinion.

And the brief quotes seven lines of text from

an unpublished Sixth Circuit opinion to support a statement that “This Court has also

stated that there is no constitutional violation

where an inmate is found guilty of a misconduct.”

The brief cites five unpublished Sixth

Circuit opinions to support a statement that

“A number of unpublished decisions of this

Court have found that a guilty finding on a

major misconduct does not constitute adverse

action.” Two of these opinions are also cited

elsewhere. The brief cites five unpublished

Sixth Circuit opinions to acknowledge “Other

unpublished decisions of this Court have

found to the contrary.”

In a footnote, the brief cites eight unpublished Sixth Circuit opinions to support a

statement that “a number of cases have held

that a guilty finding on a major misconduct is

sufficient proof under the burden shifting

analysis that the prison official would have

taken the same action in the absence of any

retaliatory intent, i.e. that the state officials

win on the causation element.” In another

footnote, the brief cites five unpublished

Sixth Circuit opinions to support a statement

that “Here, Jones was found to be guilty.

Where an inmate is found to be not guilty,

this Court has entered contradictory opinions

on whether a retaliation claim is cognizable.”

Two of the opinions are cited as holding that

a claim is not possible and three are cited as

holding to the contrary. One of these five

opinions is also cited elsewhere in the brief.

The brief cites an unpublished Sixth Circuit opinion to support a statement that “This

Court has held that spitting in an inmate’s

food or serving them contaminated food,

which Jones alleges Kolb did in retaliation, is

adverse action.”

The brief observes that the court of appeals for the Sixth Circuit said in a published

opinion that it would reserve “to another day

the question of whether ‘exhausted claims’ in

a ‘mixed complaint’ should be addressed

when such claims would otherwise meet the

pleading requirements or whether such

claims should be dismissed in their entirety.”

The brief cites an unpublished Sixth Circuit

opinion to support its footnote observation

that “This Court made this statement despite

having apparently decided in an unpublished

decision two months earlier that total exhaustion was not required.” The brief then notes,

“District Courts within Michigan have split

on this issue.” The brief identifies one published opinion by the district court for the

Western District of Michigan holding that
Citing Unpublished Opinions in Federal Appeals

193

total exhaustion is not required and two unpublished opinions by the district court for

the Western District of Michigan holding that

total exhaustion is required.

C6–6. The State of Ohio cited seven unpublished Sixth Circuit opinions in an unsuccessful appeal of its summary judgment in a

case alleging retaliation against nursing

homes for speaking out against state policies,

King v. Haas (6th Cir. 02–4141, filed

10/10/2002, judgment 01/06/2004), resolved

by unpublished opinion at 85 Fed. Appx. 480,

2004 WL 74649.

The brief cites an unpublished Sixth Circuit opinion and a published Second Circuit

opinion to support a statement that “In order

to state a claim for retaliation under the Due

Process Clause and the First Amendment, a

plaintiff must allege that he or she engaged in

conduct that was constitutionally protected,

and that retaliation against the protected

conduct was a substantial or motivating factor in the defendant’s actions.” In a footnote,

the brief also cites the unpublished Sixth Circuit opinion to support a statement that “This

Court has consistently rendered summary

judgment in a defendant’s favor when the

complained-of conduct would have occurred

regardless of the protected activity.” The

brief also cites this opinion in the summary of

argument as the support for one of 13 enumerated points, which begins, “The District

Court properly rendered summary judgment

in Defendants’ favor on Plaintiffs’ First

Amendment and Due Process ‘retaliation’

claims.”

The brief cites an unpublished Sixth Circuit opinion to support a statement that “This

Court has held that a district court may impose monetary sanctions upon an attorney

who fails to cooperate during discovery

and/or engages in abusive litigation practices.” The brief also cites this opinion in the

summary of argument as the support for the

last of 13 enumerated points: “The District

Court properly sanctioned Plaintiffs’ counsel

for engaging in discovery abuses that impeded Defendants’ ability to prepare for

trial.”

The brief quotes an unpublished Sixth

Circuit opinion as stating that “If any conceivable legitimate state interest is rationally

furthered by the faulted state action, it [is] not

‘arbitrary and capricious’ or ‘abusive.’” The

brief cites another unpublished Sixth Circuit

opinion to support a statement that “Plaintiffs have not proven that Defendants engaged in any conduct that is so oppressive or

‘conscience shocking’ that it would give rise

to a substantive due process claim.”

The brief cites an unpublished Sixth Circuit opinion to support a statement that “As

for Plaintiffs’ allegations of ‘prejudice’ or

‘bias,’ this Court has held that ‘a judge’s adverse rulings against a party do not render

him biased.’”

To counter the appellants’ argument that

a particular item of evidence was not considered, the brief cites in a footnote an unpublished Sixth Circuit opinion to support a

statement that “It should be presumed that

the District Court considered all of the relevant evidence even if such evidence is not

painstakingly listed in its decision.”

The brief cites an unpublished Sixth Circuit opinion and a published Sixth circuit

opinion to support a statement that “In order

to hold a defendant liable for an alleged ‘failure to train,’ a plaintiff must show that: 1) the

defendant is directly responsible for the training; 2) the training program is inadequate to

the task that must be performed; 3) the inadequacy ‘is the result of deliberate indifference’; and 4) ‘the inadequacy is closely related to or actually caused’ the alleged injury.”

C6–7. Both sides cited unpublished opinions in a voluntarily dismissed appeal by a

corporation of the refusal by the district court

for the Middle District of Tennessee to order

arbitration of a claim by a departing chief executive officer for severance benefits, Reardon
Citing Unpublished Opinions in Federal Appeals

194

v. Cambio Health Solutions, LLC (6th Cir. 02–

6274, filed 10/24/2002, judgment

10/28/2003).

The appellant’s brief cites an unpublished Sixth Circuit opinion to support a

statement that “This Court has held that

where a District Court has denied a party’s

motion for stay pending arbitration, or to

compel arbitration, it will accord no deference to the District Court’s Opinion, and instead conduct a de novo review.” The brief

also asks the reader to “see also” an unpublished opinion by the district court for the

Western District of Kentucky after citing a

published opinion by the court of appeals for

the Second Circuit to support a statement

that “The Second Circuit has held that where,

as here, an arbitration clause is broad, ‘there

arises a presumption of arbitrability’ and arbitration of even a collateral matter will be

ordered if the claim alleged ‘implicates issues

of contract construction or the parties’ rights

and obligations under it.’” The brief cites two

unpublished opinions by Delaware’s court of

chancery and a published opinion by Delaware’s supreme court to support a statement

that “Delaware Courts have . . . recognized

that contemporaneous documents in the

same transaction be construed together.”

The appellee’s brief devotes three pages

to an argument that “this case is readily distinguishable from this Court’s unpublished

opinion” cited by the appellants. The brief

cites another unpublished Sixth Circuit opinion to support a statement that “A party

waives its right to arbitrate when it acts inconsistently with its rights to proceed with

arbitration and thereby prejudices the other

party.”

The appellant’s reply brief cites an unpublished Sixth Circuit opinion, which cites

published decisions by Tennessee’s supreme

court and Tennessee’s court of appeals, to

support an assertion of “a cardinal rule of

contract interpretation under Tennessee law

requiring a court to give effect to parties’ intent and not to enforce an absurd result.” The

brief devotes a page-long paragraph to discussion of another unpublished Sixth Circuit

opinion supporting the corporation’s argument that it has not waived its right to arbitration. The next paragraph of the brief discusses the unpublished opinion by the district court for the Western District of Kentucky that the appellant cited in its opening

brief, asserting that “The court found that to

establish that a party waived its right to arbitrate, it must be proven that the party knew

of their right to arbitrate, yet took actions inconsistent with such right to the other party’s

prejudice.”

C6–8. In a successful civil appeal involving interpretation of a commercial lease, TelTowne Properties Group v. Toys “R” Us–

Delaware, Inc. (6th Cir. 02–1251, filed

03/01/2002, judgment 01/26/2005), resolved

by unpublished opinion at 123 Fed. Appx.

656, 2005 WL 180985, both parties cited unpublished opinions.

To support a statement that “reluctance

to grant summary judgment sua sponte applies equally to sua sponte entry of judgment

on the pleadings,” the appellants cited an

unpublished Sixth Circuit opinion and a published Sixth Circuit opinion that was “superseded by statute on other grounds.” The appellee cited these opinions to rebut the appellants’ reliance on them, stating that the two

cases involved “pro se plaintiffs where the

courts were understandably concerned about

protecting the rights of the unrepresented.”

The appellants cited the unpublished opinion

in their reply brief to respond to the appellee’s rebuttal.

The appellants also cited a second unpublished Sixth Circuit opinion as an example of a case holding that it was improper for

the district court to deny the plaintiff’s motion to amend the complaint. In their reply

brief they also cited an unpublished opinion

by Michigan’s court of appeals to support the

statement that “reasonable ambiguity . . .
Citing Unpublished Opinions in Federal Appeals

195

means that parol evidence is admissible to

determine what the parties actually intended,

despite the existence of an integration clause

in the lease.”

The appellee also cited an unpublished

Sixth Circuit opinion to support a statement

that “The interpretation and construction of a

written contract are matters of law and are

reviewed de novo.”

C6–9. Both parties cited unpublished

Sixth Circuit opinions in the plaintiffs’ appeal, dismissed by stipulation, of the district

court’s refusal to order a docket sheet correction, Kraft v. Worrall, Scott & Page (6th Cir. 02–

5554, filed 05/02/2002, judgment

03/26/2003).

The plaintiffs cited an unpublished Sixth

Circuit opinion to support statements that

“Given the inaccuracies of the other docket

sheet entries, it is clear that the notations on

the documents in the file more accurately reflect when events occurred in this matter.

Under such circumstances, it is appropriate

for the district court to direct the clerk to correct the docket sheet.”

The defendants cited two unpublished

Sixth Circuit opinions to support an argument that “The district court docket complies

with [the Federal Rules of Civil Procedure] as

it indicates that the judgments were entered

on September 27, 1991.” One opinion is cited

as holding that “Rule 79 entry occurs when

‘the substance of the separate document is

reflected in an appropriate notation on the

docket sheet.’” The other opinion is cited as

holding that “a judgment is entered ‘when

the judgment is noted in the civil docket of

the district court.’”

C6–10. In an appeal by the state in a case

in which prisoners challenged interference

with their religious practices, Miller v. Wilkinson (6th Cir. 02–3299, filed 03/15/2002,

judgment 11/07/2003), the court held in a

published opinion that the Religious Land

Use and Institutionalized Persons Act is unconstitutional, Cutter v. Wilkinson, 349 F.3d

257 (6th Cir. 2003), but the Supreme Court

reversed, 125 S. Ct. 2113, 2005 WL 1262549

(2005). Parties on both sides cited unpublished opinions in their briefs.

The state’s brief cites two unpublished

opinions by district courts for the Northern

District of California and the Northern District of Indiana in a footnote along with eight

published opinions, including three by courts

of appeals for other circuits, one by a Sixth

Circuit district court, and four by district

courts in other circuits, as examples of how

the Religious Freedom Restoration Act had

caused disruptive effects on the operation of

other states’ prisons.

The prisoner’s brief cites an unpublished

Sixth Circuit opinion in addition to published

opinions by the courts of appeals for the

Sixth, Ninth, and Tenth Circuits to support a

statement that the “current law in the circuit

courts of appeal . . . requires that prison officials accommodate religious exercise only

when the exercise involves a tenet or belief

that is central to the religion.”

C6–11. In an unsuccessful appeal of a directed verdict in favor of a police sergeant in

an action for excessive force, Frohmuth v.

Bourk (6th Cir. 02–6284, filed 10/28/2002,

judgment 06/03/2004), resolved by unpublished opinion at Frohmuth v. Metropolitan

Government of Nashville and Davidson County,

101 Fed. Appx. 56, 2004 WL 1238919, the sergeant cited two unpublished Sixth Circuit

opinions. His brief devotes two paragraphs to

a discussion of an unpublished Sixth Circuit

opinion cited as a case in which “this Court

held that the minimal amount of force utilized by officers making an arrest could not be

deemed excessive as a matter of law.” The

next paragraph discusses another unpublished Sixth Circuit opinion in which “This

Court found that pushing the metal door

open hard enough to allegedly injure plaintiff

did not amount to excessive force as a matter

of law.”
Citing Unpublished Opinions in Federal Appeals

196

C6–12. In an unsuccessful appeal by a

surviving wife against a surviving sister in a

civil case involving proceeds of a life insurance policy, Life Insurance Company of North

America v. Leeson (6th Cir. 02–3401, filed

04/15/2002, judgment 11/06/2003), resolved

by unpublished opinion at 81 Fed. Appx. 521,

2003 WL 22682432, the wife cited an unpublished Sixth Circuit opinion to rebut the district court’s reliance on it, observing that the

unpublished opinion “does not state the applicable policy language.”

Individual Case Analyses

United States v. Flores (6th Cir. 02–1009, filed

01/03/2002, judgment 12/05/2003).

Appeal from: Eastern District of Michigan.

What happened: Unsuccessful criminal appeal

challenging the designation of alternate jurors at

random just before deliberation. The court ruled

that such selection violates the Federal Rules of

Criminal Procedure, but does not merit reversal.

Related case: Consolidated with a codefendant’s

appeal, United States v. Delgado (6th Cir. 01–2090,

filed 08/17/2001, judgment 12/05/2003), which

was resolved by the same opinion.

Appellant’s brief: The defendant’s 6,344-word

appellant brief cites 14 published opinions (two

by the U.S. Supreme Court, nine by the Sixth Circuit, and three by other circuits).

Appellee’s brief: The government’s 13,695-word

appellee brief cites 38 published opinions (11 by

the U.S. Supreme Court, 20 by the Sixth Circuit,

and seven by other circuits) and one treatise.

Opinion: (3) The court’s published 3,338-word

signed opinion, United States v. Delgado, 350 F.3d

520 (6th Cir. 2003) (18 headnotes), cites 22 published opinions (seven by the U.S. Supreme Court,

eight by the Sixth Circuit, and seven by other circuits). According to Westlaw (05/09/2005), the

court’s opinion has been cited in three Sixth Circuit opinions (one published and two unpublished), one unpublished opinion by another circuit, one unpublished opinion by California’s

court of appeal, two unpublished opinions by

Ohio’s court of appeals, and five secondary

sources.

Attorneys’ Liability Assurance Society v.

Fitzgerald (6th Cir. 02–1050, filed 01/09/2002,

judgment 01/29/2002).

Appeal from: Western District of Michigan.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Mainville v. United States (6th Cir. 02–1153, filed

02/07/2002, judgment 08/23/2002).

Appeal from: Western District of Michigan.

What happened: Certificate of appealability denied.

Related case: United States v. Mainville (6th Cir.

95–2133, filed 10/19/1995, judgment 05/08/1997)

(unsuccessful criminal appeal).

Opinion: (1) The court’s docket judgment cites

no opinions.

Parr v. Smith (6th Cir. 02–1162, filed 02/08/2002,

judgment 07/31/2002).

Appeal from: Eastern District of Michigan.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Tel-Towne Properties Group v. Toys “R” Us–

Delaware, Inc. (6th Cir. 02–1251, filed 03/01/2002,

judgment 01/26/2005).

Appeal from: Eastern District of Michigan.

What happened: Successful civil appeal involving interpretation of a commercial lease.

Appellant’s brief: The plaintiff’s 13,103-word

appellant brief cites 37 published opinions (one by

the U.S. Supreme Court, 14 by the Sixth Circuit,

three by other circuits, two by the Eastern District

of Michigan, seven by Michigan’s supreme court,

and 10 by Michigan’s court of appeals), two

unpublished Sixth Circuit opinions, one treatise,

and two dictionaries.

To support the statement that “reluctance to

grant summary judgment sua sponte applies

equally to sua sponte entry of judgment on the

pleadings,” the brief cites a published Sixth Circuit opinion and an unpublished Sixth Circuit

opinion. (Pages 24–25.) The brief notes that the

published opinion was “superseded by statute on

other grounds.”

The brief cites a second unpublished Sixth Circuit opinion as an example of a case holding that

it was improper for the district court to deny the

plaintiff’s motion to amend the complaint. (Page

47 and note 20.)

Appellee’s brief: The defendant’s 9,651-word

appellee brief cites 40 published opinions (one by

the U.S. Supreme Court, nine by the Sixth Circuit,

four by other circuits, three by the Eastern District

of Michigan, two by other districts in the Sixth

Circuit, 13 by Michigan’s supreme court, six by
Citing Unpublished Opinions in Federal Appeals

197

Michigan’s court of appeals, one by Mississippi’s

supreme court, and one by Utah’s court of appeals), two unpublished Sixth Circuit opinions,

three treatises, and one legal article.

The brief cites one unpublished Sixth Circuit

opinion and two published Sixth Circuit opinions

to support the statement, “The interpretation and

construction of a written contract are matters of

law and are reviewed de novo.” (Page 13.)

The appellee’s brief also cites an unpublished

opinion cited by the appellant’s brief to rebut the

appellant’s reliance on the opinion. According to

the appellee, “both [the unpublished opinion cited

and a published Sixth Circuit opinion cited] involve pro se plaintiffs where the courts were understandably concerned about protecting the

rights of the unrepresented.” (Page 17.)

Appellant’s reply brief: The plaintiff’s 4,029-

word reply brief cites 16 published opinions (one

by the U.S. Supreme Court, four by the Sixth Circuit, three by another circuit, three by the Eastern

District of Michigan, one by another Sixth Circuit

district, two by Michigan’s court of appeals, one

by Mississippi’s supreme court, and one by Utah’s

court of appeals) and two unpublished opinions

(one by the Sixth Circuit and one by Michigan’s

court of appeals).

The reply brief cites the unpublished Sixth Circuit opinion cited in the opening brief as an example of the plaintiff’s entitlement to amend its

complaint. The reply brief includes this opinion in

a string of two citations—with a published Sixth

Circuit opinion—to support the statement that

“this court has stated many times the principle

that ‘cases “should be tried on their merits rather

than the technicalities of pleadings.”’” (Page 10.)

The brief also cites these two opinions to support the statement, “Recognizing that ‘a busy district judge must seek to move his cases along with

a heavy docket facing him,’ this Court continues

to require that a party opposing a motion to

amend make ‘at least some significant showing of

prejudice’ if the motion is to be denied. This court

continues to find an abuse of discretion in not allowing an amendment where the lower court fails

‘to consider the competing interests of the parties

and the likelihood of prejudice to the opponent.’”

(Page 11, citations omitted.)

The brief also cites a published and an unpublished opinion by Michigan’s court of appeals to

support the statement that “reasonable ambiguity

. . . means that parol evidence is admissible to determine what the parties actually intended, despite the existence of an integration clause in the

lease.” (Page 8.)

Opinion: (2) The court’s unpublished 3,649-

word signed opinion, Tel-Towne Properties Group

v. Toys “R” Us–Delaware, Inc., 123 Fed. Appx. 656,

2005 WL 180985 (6th Cir. 2005) (two headnotes),

cites 18 published opinions (10 by the Sixth Circuit, five by Michigan’s supreme court, and three

by Michigan’s court of appeals) and two treatises.

According to Westlaw (05/09/2005), the court’s

opinion has been cited in one unpublished opinion from the Eastern District of Michigan.

Sewell v. Commissioner of Social Security (6th

Cir. 02–1314, filed 03/20/2002, judgment

12/11/2002).

Appeal from: Eastern District of Michigan.

What happened: Unsuccessful appeal of the denial of social security disability benefits.

Appellant’s brief: The plaintiff’s 7,055-word appellant brief cites 11 published opinions (one by

the U.S. Supreme Court and 10 by the Sixth Circuit).

Appellee’s brief: The commissioner’s 13,242-

word appellee brief cites 26 published opinions

(four by the U.S. Supreme Court and 22 by the

Sixth Circuit).

Appellant’s reply brief: The plaintiff’s 1,075-

word reply brief cites no opinions.

Opinion: (2) The court’s unpublished 694-word

order, Sewell v. Commissioner of Social Security, 52

Fed. Appx. 771, 2002 WL 31780952 (6th Cir. 2002)

(one headnote), cites five published Sixth Circuit

opinions. According to Westlaw (05/09/2005), the

court’s order has been cited in two secondary

sources.

Merino-Mora v. Jennifer (6th Cir. 02–1375, filed

03/29/2002, judgment 04/25/2005).

Appeal from: Eastern District of Michigan.

What happened: The government’s appeal of a

habeas corpus decision in favor of a detained immigrant voluntarily dismissed in light of the U.S.

Supreme Court’s resolution of Clark v. Martinez,

125 S. Ct. 716 (2005).

Related case: Rosales-Garcia v. Holland (6th Cir.

99-5683, filed 05/20/1999, judgment 03/05/2003)

(reversing the denial of habeas corpus relief to a

detained Cuban immigrant whom Cuba will not

accept in removal).

Opinion: (1) The court’s docket judgment cites

no opinions.

Williams v. Price (6th Cir. 02–1510, filed

04/25/2002, judgment 09/19/2002).

Appeal from: Eastern District of Michigan.

What happened: Certificate of appealability denied.
Citing Unpublished Opinions in Federal Appeals

198

Opinion: (1) The court’s docket judgment cites

no opinions.

Brown v. Commissioner of Internal Revenue (6th

Cir. 02–1630, filed 05/21/2002, judgment

12/19/2002).

Appeal from: United States Tax Court.

What happened: Unsuccessful pro se tax appeal

transferred from the District of Columbia Circuit,

Brown v. Commissioner of the Internal Revenue Service (D.C. Cir. 02–1012, filed 01/07/2002, transferred 05/13/2002).

Appellee’s brief: The commissioner’s 3,794-word

appellee brief cites 12 published opinions (one by

the U.S. Supreme Court; five by other circuits,

including two in related appeals; one by a district

in another circuit in a related case; one by the

United States Claims Court in a related case; and

four by the United States Tax Court, including

one in a related case) and one unpublished order

by the Sixth Circuit in a related appeal.

The unpublished Sixth Circuit order is an affirmance, cited to complete the citation of a published tax court opinion.

Opinion: (2) The court’s unpublished 709-word

order, Brown v. Commissioner of Internal Revenue, 53 Fed. Appx. 356, 2002 WL 31863695 (6th

Cir. 2002) (no headnotes), cites five published

opinions (one by the U.S. Supreme Court; one by

the Sixth Circuit; two by other circuits, including

one in a related appeal; and the published opinion

in this case by the United States Tax Court). According to Westlaw (05/09/2005), the court’s order has not been cited elsewhere.

Burton v. Smith (6th Cir. 02–1654, filed

05/24/2002, judgment 09/16/2002).

Appeal from: Eastern District of Michigan.

What happened: Prisoner’s pro se habeas corpus

appeal dismissed, because the order appealed is

not appealable.

Related case: A concurrent appeal resulted in a

denial of a certificate of appealability, Burton v.

Smith (6th Cir. 02–1499, filed 04/24/2002, judgment 09/26/2002).

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Truss (6th Cir. 02–1684, filed 05/31/2002,

judgment 07/09/2002).

Appeal from: Eastern District of Michigan.

What happened: Original pro se proceeding dismissed for lack of prosecution.

Related cases: United States v. Truss (6th Cir. 96–

1974, filed 08/08/1996, judgment 05/21/1998)

(criminal sentence vacated and case remanded for

resentencing), Truss v. United States (6th Cir. 00–

2000, filed 09/01/2000, judgment 03/28/2001)

(certificate of appealability denied), and In re

Truss (6th Cir. 01–1919, filed 07/03/2001, judgment 12/12/2001) (pro se motion to file a second

motion to vacate a sentence denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

Klimik v. Kent County Sheriff’s Department (6th

Cir. 02–1774, filed 06/21/2002, judgment

01/30/2004).

Appeal from: Western District of Michigan.

What happened: Unsuccessful appeal of summary judgment for a sheriff’s department that

denied non-emergency services to the plaintiff

who complained about his neighbor, a senior officer on the force.

Appellant’s brief: The plaintiff’s 3,360-word appellant brief cites 16 published opinions (six by

the U.S. Supreme Court, three by the Sixth Circuit,

one by another circuit, two by the Western District of Michigan, three by districts in other circuits, and one by Oklahoma’s supreme court).

Appellee’s brief: The sheriff’s department’s

4,283-word appellee brief cites 18 published opinions (eight by the U.S. Supreme Court, five by the

Sixth Circuit, two by other circuits, two by the

Western District of Michigan, and one by another

Sixth Circuit district) and two unpublished opinions (one by the Sixth Circuit and one by the

Western District of Michigan).

The brief cites an unpublished opinion by the

Western District of Michigan as an opinion relied

on by the district court in this case, an opinion

holding that a sheriff’s department is not a legal

entity subject to suit. (Pages 13–15.) The brief

identifies five opinions cited by the district judge

in the unpublished opinion—a published opinion

by the Sixth Circuit, two published opinions by

the Western District of Michigan, one published

opinion by the Eastern District of Michigan, and

one unpublished opinion by the Sixth Circuit.

Appellant’s reply brief: The plaintiff’s 768-word

reply brief cites no opinions.

Opinion: (2) The court’s unpublished 4,497-

word signed opinion, Klimik v. Kent County Sheriff’s Department, 91 Fed. Appx. 396, 2004 WL

193168 (6th Cir. 2004) (two headnotes), cites 28

published opinions (10 by the U.S. Supreme

Court, 13 by the Sixth Circuit, and five by other

circuits) and an unpublished Sixth Circuit opinion.

The opinion quotes an unpublished opinion by

the court to support the statement that under the

Supreme Court’s holding in Village of Willowbrook

v. Olech, 528 U.S. 562 (2000), “a ‘class of one’ plain-
Citing Unpublished Opinions in Federal Appeals

199

tiff may demonstrate that a government action

lacks a rational basis [by] ‘negativ[ing] every conceivable basis which might support’ the government action.” (Page 7, 91 Fed. Appx. at 400.) The

unpublished Sixth Circuit opinion is cited as quoting another Supreme Court opinion.

According to Westlaw (05/09/2005), the

court’s opinion has not been cited elsewhere.

Jones v. Kolb (6th Cir. 02–2112, filed 09/13/2002,

judgment 12/10/2003).

Appeal from: Eastern District of Michigan.

What happened: Unsuccessful pro se appeal by a

prisoner of the district court’s judgment awarding

costs to the defendants.

Related cases: Previous and concurrent pro se

appeals by the prisoner include Jones v. Kolb (6th

Cir. 02–1822, filed 06/27/2002, judgment

10/04/2002) (prisoner appeal voluntarily dismissed), Jones v. Kolb (6th Cir. 02–1943, filed

08/06/2002, judgment 12/09/2003) (unsuccessful

prisoner appeal), Jones v. Kolb (6th Cir. 02–1997,

filed 08/15/2002, judgment 12/09/2003) (prisoner appeal dismissed for lack of jurisdiction),

Jones v. Kolb (6th Cir. 02–2179, filed 09/30/2002,

judgment 12/10/2003) (unsuccessful prisoner appeal), Jones v. Kolb (6th Cir. 02–2407, filed

12/10/2002, judgment 09/17/2003) (prisoner appeal dismissed for failure to pay the filing fee),

Jones v. Kolb (6th Cir. 03–1673, filed 06/03/2003,

judgment 12/18/2003) (unsuccessful appeal of a

bar on further district court filings), Jones v. Kolb

(6th Cir. 03–1767, filed 06/25/2003, judgment

12/12/2003) (prisoner appeal dismissed).

Appellee’s brief: The state’s 14,180-word appellee brief cites 54 published opinions (14 by the

U.S. Supreme Court, 24 by the Sixth Circuit, six by

other circuits, one by a Sixth Circuit district, one

by a district in another circuit, four by Michigan’s

supreme court, and four by Michigan’s court of

appeals), 34 unpublished opinions (32 by the Sixth

Circuit, including three in related appeals, and

two by a Sixth Circuit district), five related Sixth

Circuit appeals, and Black’s Law Dictionary.

The brief cites the three related unpublished

Sixth Circuit opinions as prior actions constituting

strikes under the Prison Litigation Reform Act.

(Page 10.)

The prisoner claimed that prison officials interfered with his grievances. The state’s brief argues

that a prisoner has a First Amendment right only

to file meritorious grievances. The brief discusses

four unpublished Sixth Circuit opinions to support the statement: “In a number of unpublished

decisions, this Court has addressed what constitutes meritless claims, grievances, or lawsuits.”

(Page 21.)

The brief begins an 8-page discussion of

whether the “issuance of a major misconduct

ticket should . . . be the basis of a First Amendment retaliation claim” with the statement that in

an unpublished Sixth Circuit opinion “this Court

for the second time announced what should be an

absolute rule: ‘a finding of guilt based upon some

evidence of a violation of prison rules “essentially

checkmates [a] retaliation claim.”’” (Page 44.) The

brief notes that the unpublished opinion cites a

published opinion by the Eighth Circuit and the

brief cites another unpublished opinion by the

Sixth Circuit as quoting the Eighth Circuit opinion.

The brief also quotes seven lines of text from

an unpublished Sixth Circuit opinion to support

the statement, “This Court has also stated that

there is no constitutional violation where an inmate is found guilty of a misconduct.” (Pages 44–

45.)

The brief cites five unpublished Sixth Circuit

opinions to support the statement, “A number of

unpublished decisions of this Court have found

that a guilty finding on a major misconduct does

not constitute adverse action.” (Page 49.) Two of

these opinions are also cited elsewhere. The brief

cites five unpublished Sixth Circuit opinions to

acknowledge “Other unpublished decisions of

this Court have found to the contrary.” (Page 50.)

In a footnote, the brief cites eight unpublished

Sixth Circuit opinions to support the statement

that “a number of cases have held that a guilty

finding on a major misconduct is sufficient proof

under the burden shifting analysis that the prison

official would have taken the same action in the

absence of any retaliatory intent, i.e. that the state

officials win on the causation element.” (Page 50,

note 15.) In another footnote, the brief cites five

unpublished Sixth Circuit opinions to support the

statement, “Here, Jones was found to be guilty.

Where an inmate is found to be not guilty, this

Court has entered contradictory opinions on

whether a retaliation claim is cognizable.” (Page

51, note 16.) Two of the opinions are cited as holding that a claim is not possible and three are cited

as holding to the contrary. One of these five opinions is also cited elsewhere in the brief.

The brief cites an unpublished Sixth Circuit

opinion to support the statement, “This Court has

held that spitting in an inmate’s food or serving

them contaminated food, which Jones alleges

Kolb did in retaliation, is adverse action.” (Page

44.)
Citing Unpublished Opinions in Federal Appeals

200

The brief observes that the Sixth Circuit said in

a published opinion that it would reserve “to another day the question of whether ‘exhausted

claims’ in a ‘mixed complaint’ should be addressed when such claims would otherwise meet

the pleading requirements or whether such claims

should be dismissed in their entirety.” (Page 15.)

The brief cites an unpublished Sixth Circuit opinion to support its footnote observation that “This

Court made this statement despite having apparently decided in an unpublished decision two

months earlier that total exhaustion was not required.” (Page 15, note 8.) The brief then notes,

“District Courts within Michigan have split on

this issue.” (Page 17.) The brief identifies one published opinion by the Western District of Michigan holding that total exhaustion is not required

and two unpublished opinions by the Western

District of Michigan holding that total exhaustion

is required.

Opinion: (2) The court’s unpublished 508-word

order, Jones v. Kolb, 84 Fed. Appx. 560, 2003 WL

23095569 (6th Cir. 2003) (one headnote), cites two

published Sixth Circuit opinions. According to

Westlaw (05/09/2005), the court’s order has not

been cited elsewhere.

Jorgensen v. Cason (6th Cir. 02–2155, filed

09/25/2002, judgment 02/19/2004).

Appeal from: Eastern District of Michigan.

What happened: Unsuccessful appeal of the denial of habeas corpus relief. In a trial for sexually

assaulting a 13-year-old stepson, defense counsel

mentioned during opening argument that the

boy’s biological father was in prison for rape. The

court of appeals determined that the district

court’s declaration of a mistrial was a manifest

necessity, so the second trial was not double jeopardy.

Appellant’s brief: The petitioner’s 5,107-word

appellant brief cites 39 published opinions (six by

the U.S. Supreme Court, eight by the Sixth Circuit,

two by other circuits, one by a circuit court in another circuit’s district, six by Michigan’s supreme

court, and 16 by Michigan’s court of appeals).

Appellee’s brief: The state’s 2,518-word appellee

brief cites 12 published opinions (seven by the

U.S. Supreme Court, four by the Sixth Circuit and

one by Michigan’s supreme court) and three unpublished orders in the petitioner’s state court

case (one by the trial court, one by the court of

appeals, and one by the supreme court).

Opinion: (2) The court’s unpublished 2,528-

word signed opinion, Jorgenson v. Cason, 89 Fed.

Appx. 972, 2004 WL 326233 (6th Cir. 2004) (one

headnote), cites 13 published opinions (seven by

the U.S. Supreme Court, five by the Sixth Circuit,

and one by another circuit). According to Westlaw

(05/09/2005), this case has not been cited elsewhere.

Otworth v. Vanderploeg (6th Cir. 02–2201, filed

10/04/2002, judgment 03/19/2003).

Appeal from: Western District of Michigan.

What happened: Unsuccessful pro se appeal. Of

the two defendants, only one filed an appellee

brief.

Related case: The selected appeal was consolidated with Otworth v. Vanderploeg (6th Cir. 02–

2035, filed 08/23/2002, judgment 03/19/2003)

(unsuccessful pro se appeal).

Appellee’s brief: The defendant’s 730-word appellee brief, originally filed in the consolidated

appeal and then refiled in the selected case, cites

two published opinions (one by the U.S. Supreme

Court and one by the Sixth Circuit) and a treatise.

Opinion: (2) The court’s unpublished 935-word

order, Otworth v. Vanderploeg, 61 Fed. Appx. 163,

2003 WL 1465399 (6th Cir. 2003) (four headnotes),

cites six published opinions (three by the U.S. Supreme Court and three by the Sixth Circuit). According to Westlaw (05/09/2005), the court’s order has been cited in one appellate brief in a case

in another circuit.

Crowley v. Renico (6th Cir. 02–2224, filed

10/11/2002, judgment 11/10/2003).

Appeal from: Eastern District of Michigan.

What happened: Unsuccessful pro se prisoner

habeas corpus appeal.

Related case: The selected case was consolidated

with Crowley v. Renico (6th Cir. 02–2290, filed

11/04/2002, judgment 11/10/2003) (unsuccessful

pro se prisoner habeas corpus appeal).

Appellee’s brief: The state’s 1,675-word appellee

brief cites 10 published opinions (five by the U.S.

Supreme Court, three by the Sixth Circuit, one by

the Eastern District of Michigan, and one by

Michigan’s supreme court).

Opinion: (2) The court’s unpublished 524-word

order, Crowley v. Renico, 81 Fed. Appx. 36, 2003

WL 22701297 (6th Cir. 2003), cites five published

opinions (three by the Sixth Circuit, one by another circuit, and one by the Eastern District of

Michigan). According to Westlaw (05/09/2005),

the court’s order has not been cited elsewhere.

Hauck v. Commissioner of Internal Revenue (6th

Cir. 02–2301, filed 11/05/2002, judgment

05/02/2003).

Appeal from: United States Tax Court.

What happened: Unsuccessful pro se tax appeal.
Citing Unpublished Opinions in Federal Appeals

201

Appellee’s brief: The commissioner’s 8,216-word

appellee brief cites 22 published opinions (two by

the U.S. Supreme Court, three by the Sixth Circuit,

10 by other circuits, and seven by the United

States Tax Court) and six unpublished opinions

(three by districts in other circuits and three by

the United States Tax Court).

The brief cites unpublished opinions by the

district courts for the District of Nevada, the

Northern District of Oklahoma, and the Eastern

District of Virginia to rebut the taxpayer’s argument that Form 23C is the only authorized assessment form. (Page 20.)

The brief cites three unpublished Tax Court

memoranda to support the commissioner’s position that the IRS may rely on a non-certified transcript of account to verify a tax assessment. (Page

22.)

Opinion: (2) The court’s unpublished 825-word

order, Hauk v. Commissioner of Internal Revenue, 64

Fed. Appx. 492, 2003 WL 21005238 (6th Cir. 2003)

(one headnote), cites three published opinions

(two by the Sixth Circuit and one by another circuit) and one unpublished opinion by a district

court in another circuit.

The opinion cites an unpublished opinion by

the Western District of Texas to support a statement that “the computerized ‘RACS Report’ has

simply replaced the IRS Form 23C for assessments

after 1984.” (Page 3, 64 Fed. Appx. at 493.)

According to Westlaw (05/09/2005), the

court’s order has been cited in three unpublished

tax court opinions and four secondary sources.

Borom v. Detroit Board of Education (6th Cir. 02–

2323, filed 11/08/2002, judgment 03/05/2003).

Appeal from: Eastern District of Michigan.

What happened: Stipulated dismissal of plaintiffs’ appeal of a civil rights judgment.

Opinion: (1) The court’s docket judgment cites

no opinions.

Parr v. Berghuis (6th Cir. 02–2412, filed

12/10/2002, judgment 04/01/2003).

Appeal from: Western District of Michigan.

What happened: Pro se prisoner appeal dismissed as late.

Related case: Parr v. Berghuis (6th Cir. 02–2413,

filed 12/10/2002, judgment 07/14/2003) (certificate of appealability denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

Hamid v. Immigration and Naturalization

Service (6th Cir. 02–3166, filed 02/08/2002,

judgment 07/15/2003).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal.

Petitioner’s brief: The petitioner’s 4,299-word

brief cites 10 published court opinions (one by the

Sixth Circuit, eight by other circuits, and one by a

district in another circuit) and two published decisions of the Board of Immigration Appeals.

Respondent’s brief: The government’s 4,642-

word respondent brief cites nine published court

opinions (three by the U.S. Supreme Court, five

by the Sixth Circuit, and one by another circuit)

and three published decisions of the Board of

Immigration Appeals.

Petitioner’s reply brief: The petitioner’s 1,282-

word reply brief cites one published decision of

the Board of Immigration Appeals.

Opinion: (3) The court’s published 1,602-word

signed opinion, Hamid v. Ashcroft, 336 F.3d 465

(6th Cir. 2003) (eight headnotes), cites three published court opinions (one by the Sixth Circuit and

two by other circuits) and one published decision

of the Board of Immigration Appeals. According

to Westlaw (05/09/2005), the court’s opinion has

been cited in two Sixth Circuit opinions (one published and one unpublished), two published opinions by other circuits, three unpublished administrative decisions, two secondary sources, one petition for a writ of certiorari in the U.S. Supreme

Court, one appellate brief in a case in another circuit, and three trial briefs in two cases (one trial

brief in a case in a Sixth Circuit district and two

trial briefs in a case in another circuit’s district).

Pratt v. United States (6th Cir. 02–3251, filed

03/04/2002, judgment 09/18/2002).

Appeal from: Northern District of Ohio.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Bowker (6th Cir. 02–3274, filed 03/01/2002,

judgment 06/21/2002).

Appeal from: Northern District of Ohio.

What happened: Petition for a writ of mandamus dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Miller v. Wilkinson (6th Cir. 02–3299, filed

03/15/2002, judgment 11/07/2003).

Appeal from: Southern District of Ohio.

What happened: Appeal by the state in a case

where prisoners challenged interference with

their religious practices. The court held the Religious Land Use and Institutionalized Persons Act

to be unconstitutional, but the U.S. Supreme
Citing Unpublished Opinions in Federal Appeals

202

Court reversed, Cutter v. Wilkinson, 125 S. Ct. 2113

(2005).

Related cases: The district court case was consolidated with two similar actions, the appeals

from which were consolidated with the selected

case, Cutter v. Wilkinson (6th Cir. 02–3270, filed

03/08/2002, judgment 11/07/2003) (two prisoners) and Gerhardt v. Lazaroff (6th Cir. 02–3301, filed

03/15/2002, judgment 11/07/2003) (one prisoner).

Appellant’s brief: The state’s 13,989-word appellant brief cites 85 published opinions (42 by the

U.S. Supreme Court, six by the Sixth Circuit, 17 by

other circuits, one by the Southern District of

Ohio, three by other Sixth Circuit districts, 14 by

districts in other circuits, one by California’s supreme court, and one by Washington’s supreme

court) and three unpublished opinions (one by the

Sixth Circuit concerning a previous conviction of

one of the prisoners and two by districts in other

circuits).

The brief cites two unpublished opinions by

district courts in other circuits (the Northern District of California and the Northern District of Indiana) in a footnote along with eight published

opinions (three by other circuits, one by a Sixth

Circuit district, and four by districts in other circuits) as examples of how the Religious Freedom

Restoration Act had caused disruptive effects on

the operation of other states’ prisons.

Appellee’s brief: The prisoners’ 14,466-word appellee brief cites 65 published opinions (43 by the

U.S. Supreme Court, seven by the Sixth Circuit, 11

by other circuits, one by a district in another circuit, one by Ohio’s supreme court, one by California’s supreme court, and one by Washington’s

supreme court), one unpublished Sixth Circuit

opinion, one treatise, one journal article, one legal

newspaper article, two encyclopedias of religion,

and seven religious texts.

The brief cites an unpublished Sixth Circuit

opinion in addition to published opinions by the

Sixth, Ninth, and Tenth Circuits to support the

statement that the “current law in the circuit

courts of appeal . . . requires that prison officials

accommodate religious exercise only when the

exercise involves a tenet or belief that is central to

the religion.” (Page 27.)

Appellee’s brief: The government’s 11,614-word

appellee brief as intervenor, cites 83 published

opinions (47 by the U.S. Supreme Court, seven by

the Sixth Circuit, 20 by other circuits, four by districts in other circuits, one by Massachusetts’s supreme judicial court, one by Minnesota’s supreme

court, two by Washington’s supreme court, and

one by Wisconsin’s supreme court) and four law

review articles.

Amicus brief: The American Jewish Congress

and other organizations advocating religious liberty filed a 5,450-word amicus curiae brief, citing

47 published opinions (25 by the U.S. Supreme

Court, seven by the Sixth Circuit, 13 by other circuits, one by a district in another circuit, and one

by Washington’s supreme court) and one government report.

Appellant’s reply brief: The state’s 7,120-word

reply brief cites 62 published opinions (40 by the

U.S. Supreme Court, 14 by the Sixth Circuit, six by

other circuits, and two by districts in other circuits).

Opinion: (3) The court’s published 4,961-word

signed opinion, Cutter v. Wilkinson, 349 F.3d 257

(6th Cir. 2003) (10 headnotes), cites 31 published

opinions (14 by the U.S. Supreme Court, one by

the Sixth Circuit, 11 by other circuits, one by a

Sixth Circuit district, and four by districts in other

circuits) and one law review article. According to

Westlaw (05/09/2005), the court’s opinion has

been cited in two unpublished Sixth Circuit opinions, eight published opinions by other circuits,

one published opinion by a Sixth Circuit district,

11 opinions by districts in other circuits (three

published and eight unpublished), 21 secondary

sources, 17 briefs in the U.S. Supreme Court in

four cases (including U.S. Supreme Court review

of this case), 14 appellate briefs in eight cases (12

briefs in six cases in other circuits and two briefs

in two cases in California’s supreme court), and

eight trial court briefs in six cases (two briefs in

two cases in a Sixth Circuit district and six briefs

in four cases in districts in other circuits).

Life Insurance Company of North America v.

Leeson (6th Cir. 02–3401, filed 04/15/2002,

judgment 11/06/2003).

Appeal from: Southern District of Ohio.

What happened: Unsuccessful appeal by a surviving wife against a surviving sister in a civil

case involving proceeds of a life insurance policy.

Appellant’s brief: The wife’s 3,782-word appellant brief cites 20 published opinions (four by the

U.S. Supreme Court, 12 by the Sixth Circuit, one

by another circuit, one by a district in another circuit, one by Delaware’s supreme court, and one

by Michigan’s court of appeals) and one unpublished Sixth Circuit opinion.

The brief rebuts the district court’s reliance on

an unpublished Sixth Circuit opinion by observing that the unpublished opinion “does not state

the applicable policy language.” (Page 11, note 1.)
Citing Unpublished Opinions in Federal Appeals

203

Appellee’s brief: The sister’s 2,904-word appellee

brief cites two published opinions (one by the

Sixth Circuit and one by another circuit).

Appellant’s reply brief: The wife’s 1,938-word

reply brief cites seven published opinions (two by

the Sixth Circuit, three by other circuits, one by a

district in another circuit, and one by Delaware’s

supreme court).

Opinion: (2) The court’s unpublished 1,147-

word per curiam opinion, Life Insurance Company

of North America v. Leeson, 81 Fed. Appx. 521, 2003

WL 22682432 (6th Cir. 2003) (one headnote), cites

one published Sixth Circuit opinion. According to

Westlaw (05/09/2005), the court’s opinion has

been cited in one secondary source.

United States v. Meyer (6th Cir. 02–3582, filed

05/23/2002, judgment 02/23/2004).

Appeal from: Northern District of Ohio.

What happened: Unsuccessful criminal appeal.

Appellant’s brief: The defendant’s 4,383-word

appellant brief cites eight published opinions (two

by the U.S. Supreme Court and six by the Sixth

Circuit) and the case in the Northern District of

Ohio appealed.

Appellee’s brief: The government’s 3,322-word

appellee brief cites 13 published opinions (three

by the U.S. Supreme Court, nine by the Sixth Circuit, and one by another circuit).

Opinion: (3) The court’s published 4,433-word

signed opinion and dissent, United States v. Meyer,

359 F.3d 820 (6th Cir. 2004) (12 headnotes), cites 15

published opinions (three by the U.S. Supreme

Court and 12 by the Sixth Circuit). According to

Westlaw (05/09/2005), the court’s opinion has

been cited in two unpublished Sixth Circuit opinions, one unpublished opinion by a district in another circuit, five secondary sources, and one appellate brief in one case in another circuit.

In re ATD Corp. (6th Cir. 02–3785, filed

07/12/2002, judgment 12/17/2003).

Appeal from: Northern District of Ohio.

What happened: Unsuccessful appeal by a bankruptcy debtor. The court of appeals held that it

was proper for the bankruptcy court to exempt

unsecured creditors from a bar date order, because the bankruptcy rules specified that creditors

such as appellees did not have to file specific

claims.

Appellant’s brief: The debtor’s 9,541-word appellant brief cites 18 published opinions (four by

the U.S. Supreme Court, five by the Sixth Circuit,

one by the Sixth Circuit’s bankruptcy appellate

panel, three by other circuits, one by a district in

another circuit, and four by bankruptcy courts in

other circuits), one treatise, and Black’s Law Dictionary.

Appellee’s brief: The creditors’ 7,235-word appellee brief cites 23 published opinions (five by

the U.S. Supreme Court, four by the Sixth Circuit,

six by other circuits, one by a district in another

circuit, and seven by bankruptcy courts in other

circuits).

Appellant’s reply brief: The debtor’s 3,372-word

reply brief cites 12 published opinions (five by the

U.S. Supreme Court, three by the Sixth Circuit,

one by another circuit, one by a district in another

circuit, and two by bankruptcy courts in another

circuit), two treatises, and Black’s Law Dictionary.

Opinion: (3) The court’s published 2,122-word

signed opinion, In re ATD Corp., 352 F.3d 1062 (6th

Cir. 2003) (five headnotes), cites nine published

opinions (two by the U.S. Supreme Court, three

by the Sixth Circuit, one by another circuit, one by

the Northern District of Ohio’s bankruptcy court,

and two by bankruptcy courts in other circuits).

According to Westlaw (05/02/2005), the court’s

opinion has been cited in one published opinion

by the Northern District of Ohio’s bankruptcy

court, eight secondary sources, and two trial court

briefs in two cases (one in the Northern District of

Ohio’s bankruptcy court and one in the Southern

District of Ohio’s bankruptcy court).

United States v. Fraser (6th Cir. 02–4001, filed

09/10/2002, judgment 04/03/2003).

Appeal from: Northern District of Ohio.

What happened: Unsuccessful appeal of a conviction of conspiracy to maintain a fraudulent

telemarketing scheme.

Appellant’s brief: The defendant’s 8,177-word

appellant brief cites 16 published opinions (seven

by the U.S. Supreme Court, six by the Sixth Circuit, and three by other circuits).

Appellee’s brief: The government’s 4,625-word

appellee brief cites 10 published opinions (two by

the U.S. Supreme Court and eight by the Sixth

Circuit).

Opinion: (2) The court’s unpublished 2,176-

word per curiam opinion, United States v. Fraser,

63 Fed. Appx. 814, 2003 WL 1819648 (6th Cir.

2003) (one headnote), cites 12 published opinions

(two by the U.S. Supreme Court, nine by the Sixth

Circuit, and one by another circuit). According to

Westlaw (05/04/2005), the court’s opinion has not

been cited elsewhere.

King v. Haas (6th Cir. 02–4141, filed 10/10/2002,

judgment 01/06/2004).

Appeal from: Northern District of Ohio.
Citing Unpublished Opinions in Federal Appeals

204

What happened: Unsuccessful appeal of summary judgment granted to the state in a case alleging retaliation against nursing homes for speaking

out against state policies.

Appellant’s brief: The plaintiffs’ 9,145-word appellant brief cites 28 published opinions (two by

the U.S. Supreme Court, nine by the Sixth Circuit,

13 by other circuits, and four by districts in other

circuits).

Appellee’s brief: The state’s 14,356-word appellee brief cites 35 published opinions (seven by the

U.S. Supreme Court, 25 by the Sixth Circuit, and

three by other circuits) and seven unpublished

Sixth Circuit opinions.

The brief cites an unpublished Sixth Circuit

opinion and a published Second Circuit opinion

to support the statement, “In order to state a claim

for retaliation under the Due Process Clause and

the First Amendment, a plaintiff must allege that

he or she engaged in conduct that was constitutionally protected, and that retaliation against the

protected conduct was a substantial or motivating

factor in the defendant’s actions.” (Pages 40–41.)

In a footnote, the brief also cites the unpublished

Sixth Circuit opinion to support the statement,

“This Court has consistently rendered summary

judgment in a defendant’s favor when the complained-of conduct would have occurred regardless of the protected activity.” (Page 41, note 15.)

The brief also cites this opinion in the summary of

argument as the support for one of 13 enumerated

points, which begins, “The District Court properly

rendered summary judgment in Defendants’ favor on Plaintiffs’ First Amendment and Due Process ‘retaliation’ claims.” (Page 23.)

The brief cites an unpublished Sixth Circuit

opinion to support the statement, “This Court has

held that a district court may impose monetary

sanctions upon an attorney who fails to cooperate

during discovery and/or engages in abusive litigation practices.” (Page 60.) The brief also cites

this opinion in the summary of argument as the

support for the last of 13 enumerated points: “The

District Court properly sanctioned Plaintiffs’

counsel for engaging in discovery abuses that impeded Defendants’ ability to prepare for trial.”

(Page 26.)

The brief quotes an unpublished Sixth Circuit

opinion as stating, “If any conceivable legitimate

state interest is rationally furthered by the faulted

state action, it [is] not ‘arbitrary and capricious’ or

‘abusive.’” (Page 37.) The brief cites another unpublished Sixth Circuit opinion to support the

statement that “Plaintiffs have not proven that

Defendants engaged in any conduct that is so oppressive or ‘conscience shocking’ that it would

give rise to a substantive due process claim.”

(Page 38.)

The brief cites an unpublished Sixth Circuit

opinion to support the statement, “As for Plaintiffs’ allegations of ‘prejudice’ or ‘bias,’ this Court

has held that ‘a judge’s adverse rulings against a

party do not render him biased.’” (Page 50.)

To counter the appellants’ argument that a

particular item of evidence was not considered,

the brief cites in a footnote an unpublished Sixth

Circuit opinion to support the statement, “It

should be presumed that the District Court considered all of the relevant evidence even if such

evidence is not painstakingly listed in its decision.” (Page 51, note 18.)

The brief cites an unpublished Sixth Circuit

opinion and a published Sixth Circuit opinion to

support the statement, “In order to hold a defendant liable for an alleged ‘failure to train,’ a plaintiff must show that: 1) the defendant is directly

responsible for the training; 2) the training program is inadequate to the task that must be performed; 3) the inadequacy ‘is the result of deliberate indifference’; and 4) ‘the inadequacy is closely

related to or actually caused’ the alleged injury.”

(Page 51.)

Appellant’s reply brief: The plaintiffs’ 1,920-

word reply brief cites eight published opinions

(one by the U.S. Supreme Court, two by the Sixth

Circuit, and five by other circuits).

Opinion: (2) The court’s unpublished 1,037-

word signed opinion, King v. Haas, 85 Fed. Appx.

480, 2004 WL 74649 (6th Cir. 2004) (one headnote),

cites three published Sixth Circuit opinions. According to Westlaw (05/05/2005), the court’s

opinion has been cited in one published opinion

by a district in another circuit.

In re First Ohio Title Services Inc. (6th Cir. 02–

4262, filed 11/06/2002, judgment 05/12/2003).

Appeal from: Southern District of Ohio.

What happened: Bankruptcy appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Hila v. Ashcroft (6th Cir. 02–4398, filed

12/13/2002, judgment 02/07/2003).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

as untimely.

Opinion: (1) The court’s docket judgment cites

no opinions.
Citing Unpublished Opinions in Federal Appeals

205

Cohen v. Trans Union (6th Cir. 02–4420, filed

12/18/2002, judgment 06/06/2003).

Appeal from: Northern District of Ohio.

What happened: Unsuccessful pro se appeal of a

summary judgment for defendants in a case

brought under the Fair Credit Reporting Act. The

plaintiff unsuccessfully argued that tax liens

against him with an incorrect middle initial for

him should not have been included in his credit

reports.

Appellee’s brief: Trans Union’s 4,751-word appellee brief cites 19 published opinions (one by

the U.S. Supreme Court, nine by the Sixth Circuit,

six by other circuits, two by districts in other circuits, and one by Ohio’s supreme court).

Appellee’s brief: Equifax’s 400-word appellee

brief cites no opinions.

Appellee’s brief: CBC Credit Services’ 2,232-

word appellee brief cites seven published opinions (three by the Sixth Circuit, three by other circuits, and one by Ohio’s supreme court).

Opinion: (2) The court’s unpublished 903-word

order, Cohen v. Trans Union, 67 Fed. Appx. 325,

2003 WL 21321162 (6th Cir. 2003) (four headnotes), cites five published opinions (one by the

U.S. Supreme Court and four by the Sixth Circuit).

According to Westlaw (05/05/2005), the court’s

opinion has been cited in two secondary sources.

Wood v. Metropolitan Trucking, Inc. (6th Cir. 02–

5126, filed 02/01/2002, judgment 03/25/2002).

Appeal from: Eastern District of Tennessee.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Duke v. Thoms (6th Cir. 02–5157, filed 02/07/2002,

judgment 08/14/2002).

Appeal from: Eastern District of Kentucky.

What happened: Unsuccessful pro se prisoner

habeas corpus appeal.

Opinion: (2) The court’s unpublished 799-word

order, Duke v. Thoms, 41 Fed. Appx. 837, 2002 WL

1879965 (6th Cir. 2002) (no headnotes), cites five

published opinions (two by the U.S. Supreme

Court and three by the Sixth Circuit) and one unpublished opinion by another circuit affirming the

habeas corpus petitioner’s original conviction.

According to Westlaw (05/05/2005), the court’s

order has not been cited elsewhere.

Riggins v. United States (6th Cir. 02–5197, filed

02/14/2002, judgment 08/09/2002).

Appeal from: Western District of Kentucky.

What happened: Certificate of appealability denied.

Related cases: United States v. Riggins (6th Cir.

93–5075, filed 01/19/1993, judgment 02/23/1994)

(judgment of acquittal reversed), United States v.

Riggins (6th Cir. 95–5552, filed 04/25/1995, judgment 02/13/1997) (successful appeal by the government in a criminal case against two defendants), and United States v. McVean (6th Cir. 98–

6139, filed 08/28/1998, judgment 03/08/2000)

(unsuccessful criminal appeal by the same two

defendants).

Opinion: (1) The court’s docket judgment cites

no opinions.

Love v. Fortafil Fibers Inc. (6th Cir. 02–5279, filed

03/05/2002, judgment 04/10/2002).

Appeal from: Eastern District of Tennessee.

What happened: Pro se plaintiff’s employment

discrimination appeal dismissed for lack of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

Cohn v. Parallel Products of Kentucky, Inc. (6th

Cir. 02–5319, filed 03/19/2002, judgment

04/10/2002).

Appeal from: Western District of Kentucky.

What happened: Plaintiff’s appeal dismissed for

lack of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

Moore v. Potter (6th Cir. 02–5465, filed

04/17/2002, judgment 09/18/2002).

Appeal from: Western District of Tennessee.

What happened: Unsuccessful pro se plaintiff’s

employment discrimination appeal.

Opinion: (2) The court’s 795-word unpublished

order, Moore v. Potter, 47 Fed. Appx. 318, 2002 WL

31096673 (6th Cir. 2002) (two headnotes), cites

nine published opinions (four by the U.S. Supreme Court, four by the Sixth Circuit, and one by

another circuit) and one unpublished Sixth Circuit

order.

The opinion cites an unpublished Sixth Circuit

order along with two U.S. Supreme Court opinions to support the statement that courts apply

the state personal injury limitation period to Rehabilitation Act claims. (Page 2, 47 Fed. Appx. at

320.)

According to Westlaw (05/09/2005), the

court’s order has been cited in one secondary

source.

Meyer v. United States (6th Cir. 02–5477, filed

04/18/2002, judgment 08/21/2003).

Appeal from: Eastern District of Kentucky.
Citing Unpublished Opinions in Federal Appeals

206

What happened: Unsuccessful pro se appeal by a

prisoner petitioner.

Appellee’s brief: The government’s 1,113-word

appellee brief cites seven published opinions (two

by the U.S. Supreme Court and five by the Sixth

Circuit).

Opinion: (1) The court’s docket judgment cites

no opinions.

Kraft v. Worrall, Scott & Page (6th Cir. 02–5554,

filed 05/02/2002, judgment 03/26/2003).

Appeal from: Middle District of Tennessee.

What happened: Plaintiffs’ appeal of the district

court’s refusal to order a docket sheet correction

dismissed by stipulation.

Appellant’s brief: The plaintiffs’ 1,313-word appellant brief cites three published opinions (one

by the U.S. Supreme Court, one by the Sixth Circuit, and one by another circuit) and one unpublished Sixth Circuit opinion.

The brief cites an unpublished Sixth Circuit

opinion to support the statement, “Given the inaccuracies of the other docket sheet entries, it is

clear that the notations on the documents in the

file more accurately reflect when events occurred

in this matter. Under such circumstances, it is appropriate for the district court to direct the clerk to

correct the docket sheet.” (Page 6.)

Appellee’s brief: The defendant’s 2,180-word

appellee brief cites two published Sixth Circuit

opinions and two unpublished Sixth Circuit opinions.

The brief cites two unpublished Sixth Circuit

opinions to support an argument that “The district court docket complies with [the Federal Rules

of Civil Procedure] as it indicates that the judgments were entered on September 27, 1991.”

(Pages 6–7.) One opinion is cited as holding that

“Rule 79 entry occurs when ‘the substance of the

separate document is reflected in an appropriate

notation on the docket sheet.’” The other opinion

is cited as holding that “a judgment is entered

‘when the judgment is noted in the civil docket of

the district court.’”

Appellant’s reply brief: The plaintiffs’ 134-word

reply brief cites no opinions.

Opinion: (1) The court’s docket judgment cites

no opinions.

Ray v. United States Immigration and

Naturalization Service Executive (6th Cir. 02–

5789, filed 06/26/2002, judgment 08/13/2002).

Appeal from: Western District of Tennessee.

What happened: Pro se prisoner appeal dismissed for lack of jurisdiction.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Yett (6th Cir. 02–5958, filed

08/05/2002, judgment 01/06/2004).

Appeal from: Eastern District of Kentucky.

What happened: Unsuccessful appeal of a conviction for criminal possession of firearms. The

court of appeals rejected the defendant’s claim

that one of the weapons not included in his conviction should not have been considered in his

sentence.

Appellant’s brief: The defendant’s 4,007-word

appellant brief cites 12 published opinions (three

by the U.S. Supreme Court and nine by the Sixth

Circuit).

Appellee’s brief: The government’s 3,368-word

appellee brief cites 11 published opinions (three

by the U.S. Supreme Court and eight by the Sixth

Circuit).

Opinion: (2) The court’s unpublished 1,327-

word per curiam opinion, United States v. Yett, 85

Fed. Appx. 471, 2004 WL 74644 (6th Cir. 2004)

(three headnotes), cites 12 published opinions

(four by the U.S. Supreme Court, seven by the

Sixth Circuit, and one by another circuit). According to Westlaw (05/05/2005), the opinion has

been cited in one secondary source.

Broadcast Music, Inc. v. Shooters of Memphis,

Inc. (6th Cir. 02–6026, filed 08/27/2002, judgment

12/23/2002).

Appeal from: Western District of Tennessee.

What happened: Defendants’ copyright appeal

dismissed for lack of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

Smith v. United States Postal Service (6th Cir.

02–6073, filed 09/06/2002, judgment 07/15/2004).

Appeal from: Western District of Kentucky.

What happened: Successful appeal of summary

judgment for the postal service in an employment

discrimination case. The court of appeals reversed

the district court’s finding that the plaintiff could

not have proved constructive discharge.

Appellant’s brief: The employee’s 4,212-word

appellant brief cites 14 published opinions (two

by the U.S. Supreme Court, eight by the Sixth Circuit, three by other circuits, and one by Florida’s

district court of appeal).

Appellee’s brief: The postal service’s 7,764-word

appellee brief cites 21 published opinions (four by

the U.S. Supreme Court, seven by the Sixth Circuit, five by other circuits, one by a Sixth Circuit

district, one by a district in another circuit, one by

Kentucky’s court of appeals, one by California’s
Citing Unpublished Opinions in Federal Appeals

207

supreme court, and one by California’s court of

appeal.)

Appellant’s reply brief: The employee’s 1,270-

word reply brief cites no opinions.

Opinion: (3) The court’s published 5,095-word

signed opinion, Smith v. Henderson, 376 F.3d 529

(6th Cir. 2004) (six headnotes), cites 18 published

opinions (eight by the Sixth Circuit, seven by

other circuits, one by a Sixth Circuit district, one

by a district in another circuit, and one by Kentucky’s court of appeals) and two unpublished

opinions (one by the Sixth Circuit and the district

court’s unpublished opinion in this case).

The opinion cites the unpublished Sixth Circuit opinion and 29 C.F.R. § 1630.02(o)(3) to support a statement that there was a material issue of

fact whether a letter was a request for reasonable

accommodations. (Page 12, 376 F.3d at 536.) The

citation acknowledged the unpublished opinion’s

citation to a published opinion by another circuit.

According to Westlaw (05/05/2005), the

court’s opinion has been cited in four unpublished Sixth Circuit opinions, 10 secondary

sources, and two trial court briefs in one case in

the Eastern District of Michigan.

Zahaf v. Ashcroft (6th Cir. 02–6219, filed

10/15/2002, judgment 02/11/2004).

Appeal from: Western District of Kentucky.

What happened: Unsuccessful immigration habeas corpus appeal by an Algerian citizen over

whom federal courts do not have jurisdiction because he filed immigration paperwork improperly.

Appellant’s brief: The immigrant’s 4,257-word

appellant brief cites four U.S. Supreme Court

opinions.

Appellee’s brief: The government’s 7,178-word

appellee brief cites 26 published opinions (11 by

the U.S. Supreme Court, four by the Sixth Circuit,

10 by other circuits, and one by a district in another circuit) and two treatises.

Appellant’s reply brief: The immigrant’s 2,596-

word reply brief cites five published opinions

(three by the U.S. Supreme Court, one by the Sixth

Circuit, and one by a district in another circuit).

Opinion: (2) The court’s unpublished 1,793-

word signed opinion, Zahaf v. Ashcroft, 89 Fed.

Appx. 966, 2004 WL 261011 (6th Cir. 2004) (two

headnotes), cites two published opinions (one by

the U.S. Supreme Court and one by the Sixth Circuit). According to Westlaw (05/09/2005), the

court’s opinion has not been cited elsewhere.

United States v. Burford (6th Cir. 02–6231, filed

10/17/2002, judgment 06/14/2005).

Appeal from: Eastern District of Tennessee.

What happened: Joint motion to remand in light

of United States v. Booker granted in a criminal appeal of a drug sentence.

Appellant’s brief: The defendant’s 1,043-word

appellant proof brief cites one U.S. Supreme Court

opinion.

Opinion: (1) The court’s docket judgment cites

one U.S. Supreme Court opinion.

Parker v. Gibbons (6th Cir. 02–6250, filed

10/23/2002, judgment 04/01/2003).

Appeal from: Western District of Tennessee.

What happened: Unsuccessful pro se prisoner

appeal.

Opinion: (2) The court’s 552-word unpublished

order, Parker v. Gibbons, 62 Fed. Appx. 95, 2003

WL 1795836 (6th Cir. 2003) (one headnote), cites

three published opinions (one by the U.S. Supreme Court and two by the Sixth Circuit) and

two unpublished opinions in related cases (one by

the Sixth Circuit and one by the Western District

of Tennessee). According to Westlaw

(05/09/2005), the court’s order has not been cited

elsewhere.

Reardon v. Cambio Health Solutions, LLC (6th

Cir. 02–6274, filed 10/24/2002, judgment

10/28/2003).

Appeal from: Middle District of Tennessee.

What happened: Voluntarily dismissed appeal

by a corporation of the district court’s refusal to

order arbitration of a claim by a departing chief

executive officer for severance benefits.

Related case: Cambio Health Solutions, LLC v.

Sloate (6th Cir. 02–6392, filed 11/18/2002, judgment 07/17/2003) (unsuccessful appeal of a refusal to compel arbitration).

Appellant’s brief: The corporation’s 6,946-word

appellant brief cites 28 published opinions (seven

by the U.S. Supreme Court, two by the Sixth Circuit, 12 by other circuits, one by Tennessee’s supreme court, four by Tennessee’s court of appeals,

and two by Delaware’s supreme court), four unpublished opinions (one by the Sixth Circuit, one

by a Sixth Circuit district, and two by Delaware’s

court of chancery), one treatise, and the Restatement (Second) of Contracts.

The brief cites an unpublished Sixth Circuit

opinion to support the statement, “This Court has

held that where a District Court has denied a

party’s motion for stay pending arbitration, or to

compel arbitration, it will accord no deference to
Citing Unpublished Opinions in Federal Appeals

208

the District Court’s Opinion, and instead conduct

a de novo review.” (Page 13.)

The brief asks the reader to “see also” an unpublished opinion by the Western District of Kentucky after citing a published opinion by the Second Circuit to support the statement, “The Second

Circuit has held that where, as here, an arbitration

clause is broad, ‘there arises a presumption of arbitrability’ and arbitration of even a collateral

matter will be ordered if the claim alleged ‘implicates issues of contract construction or the parties’

rights and obligations under it.’” (Page 22.)

The brief cites two unpublished opinions by

Delaware’s court of chancery and a published

opinion by Delaware’s supreme court to support

the statement, “Delaware Courts have . . . recognized that contemporaneous documents in the

same transaction be construed together.” (Page

21.)

Appellee’s brief: The executive’s 7,894-word appellee brief cites 12 published opinions (four by

the U.S. Supreme Court, three by the Sixth Circuit,

three by other circuits, and two by Tennessee’s

court of appeals) and three unpublished opinions

(two by the Sixth Circuit, and one by the Middle

District of Tennessee in a related case).

The brief devotes three pages to an argument

that “this case is readily distinguishable from this

Court’s unpublished opinion” cited by the appellants. (Pages 24–27.)

The brief cites another unpublished opinion by

the Sixth Circuit to support the statement, “A

party waives its right to arbitrate when it acts inconsistently with its rights to proceed with arbitration and thereby prejudices the other party.”

(Page 28.)

In a footnote, the brief describes a case between the corporation and another departing officer in which the Middle District of Tennessee also

denied the corporation’s motion to compel arbitration in an unpublished memorandum and order. (Page 12 note 3.) (The corporation’s appeal of

this decision was unsuccessful.)

Appellant’s reply brief: The corporation’s 3,772-

word reply brief cites 11 published opinions (one

by the U.S. Supreme Court, three by the Sixth Circuit, four by other circuits, one by a Sixth Circuit

district, one by Tennessee’s supreme court, and

one by Tennessee’s court of appeals), three unpublished opinions (two by the Sixth Circuit and

one by a Sixth Circuit district), and one treatise.

The brief cites an unpublished Sixth Circuit

opinion, which cites published decisions by Tennessee’s supreme court and Tennessee’s court of

appeals, to support an assertion of “a cardinal

rule of contract interpretation under Tennessee

law requiring a court to give effect to parties’ intent and not to enforce an absurd result.” (Page 8.)

The brief devotes a page-long paragraph to

discussion of another unpublished Sixth Circuit

opinion supporting the corporation’s argument

that it has not waived its right to arbitration.

(Pages 10–11.) The next paragraph of the brief discusses the unpublished opinion by the Western

District of Kentucky also cited in the corporation’s

opening brief, asserting that “The court found that

to establish that a party waived its right to arbitrate, it must be proven that the party knew of

their right to arbitrate, yet took actions inconsistent with such right to the other party’s prejudice.” (Page 11.)

Opinion: (1) The court’s docket judgment cites

no opinions.

Frohmuth v. Bourk (6th Cir. 02–6284, filed

10/28/2002, judgment 06/03/2004).

Appeal from: Middle District of Tennessee.

What happened: Unsuccessful appeal of a directed verdict in favor of a police sergeant in an

action for excessive force.

Related case: A codefendant police officer unsuccessfully appealed a jury verdict in favor of the

plaintiff in a consolidated appeal resolved by the

same opinion, Frohmuth v. Welch (6th Cir. 02–6285,

filed 10/28/2002, judgment 06/03/2004).

Appellant’s brief: The plaintiff’s 3,801-word appellant brief cites nine published opinions (two by

the U.S. Supreme Court and seven by the Sixth

Circuit).

Appellee’s brief: The sergeant’s 5,227-word appellee brief cites five published opinions (one by

the U.S. Supreme Court, three by the Sixth Circuit,

and one by the Middle District of Tennessee in an

earlier phase of this case) and two unpublished

Sixth Circuit opinions.

The brief devotes two paragraphs to a discussion of an unpublished Sixth Circuit opinion cited

as a case in which “this Court held that the minimal amount of force utilized by officers making

an arrest could not be deemed excessive as a matter of law.” (Page 17.) The next paragraph of the

brief discusses another unpublished Sixth Circuit

opinion in which “This Court found that pushing

the metal door open hard enough to allegedly

injure plaintiff did not amount to excessive force

as a matter of law.” (Pages 18–19.)

Appellant’s reply brief: The plaintiff’s 1,346-

word reply brief cites two published opinions

(one by the U.S. Supreme Court and one by the

Sixth Circuit).
Citing Unpublished Opinions in Federal Appeals

209

Opinion: (2) The court’s unpublished 2,474-

word signed opinion with a concurrence and dissent, Frohmuth v. Metropolitan Government of Nashville and Davidson County, 101 Fed. Appx. 56, 2004

WL 1238919 (6th Cir. 2004) (two headnotes), cites

nine published opinions (one by the U.S. Supreme

Court, seven by the Sixth Circuit and one by the

Middle District of Tennessee). According to Westlaw (05/06/2005), the court’s opinion has been

cited in one secondary source and one trial court

document in a Sixth Circuit district.

United States v. Snyder (6th Cir. 02–6287, filed

10/29/2002, judgment 02/25/2003).

Appeal from: Eastern District of Tennessee.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Messer v. Columbus Show Case Co. (6th Cir. 02–

6558, filed 12/30/2002, judgment 05/06/2003).

Appeal from: Eastern District of Kentucky.

What happened: Stipulated dismissal of an appeal and cross-appeal.

Opinion: (1) The court’s docket judgment cites

no opinions.

7. Seventh Circuit

96

The Seventh Circuit does not permit citation

to unpublished opinions in unrelated cases.

97

 96. Docket sheets have been on PACER since January 1, 2005. Before then, they were on the court’s website. They are also on the court’s intranet site. Published

opinions are on the court’s website, its intranet site, and

Westlaw. Unpublished orders are only on Westlaw.

Almost all briefs are on the court’s website and its intranet site. (Of the 17 cases with counseled briefs in this

sample, all briefs are on the court’s website and its intranet site for 16 cases, but only the appellant’s brief,

not the appellee’s brief or the appellant’s reply brief, is

on the court’s website and intranet site for one case.) A

few briefs are on Westlaw. (Of the 17 cases with counseled briefs in this sample, briefs are on Westlaw for

three cases.)

97. 7th Cir. L.R. 53(b)(2)(iv) (“Unpublished orders:

. . . Except to support a claim of res judicata, collateral

estoppel or law of the case, shall not be cited or used as

precedent (A) in any federal court within the circuit in

any written document or in oral argument; or (B) by

any such court for any purpose.”).

The court adopted a distinction between published

and unpublished opinions on February 1, 1973, and has

Of the 50 cases randomly selected, 48 are

appeals from district courts (20 from the

Northern District of Illinois, 10 from the

Northern District of Indiana, six from the

Southern District of Indiana, four each from

the Eastern District of Wisconsin and the

Western District of Wisconsin, three from the

Central District of Illinois, and one from the

Southern District of Illinois) and two are appeals from the Board of Immigration Appeals.

98

The publication rate in this sample is

16%. Eight of the appeals were resolved by

published signed opinions, seven were resolved by unpublished orders published in

the Federal Appendix, and 35 were resolved by

docket judgments.

Published opinions averaged 4,147

words in length, ranging from 1,536 to 8,070.

Unpublished opinions averaged 1,451 words

in length, ranging from 373 to 3,106. Three

opinions were under 1,000 words in length

(20%, all unpublished), and one of these was

under 500 words in length (7%).

Eleven of the appeals were fully briefed.

In 33 of the appeals no counseled brief was

filed, and in six of the appeals a counseled

brief was filed only for one side.

There are citations to unpublished court

opinions in four of these cases. In one case

the citation is only to an opinion in a related

case; in three cases there are citations to

unpublished opinions in unrelated cases. One

published opinion cites a depublished district

court opinion from another circuit; in the

other two cases the citations to unrelated unpublished opinions are only in the briefs.

None of the unrelated unpublished

opinions cited is by courts of appeals. Three

of the unrelated unpublished opinions cited

are by the district court for the Northern Dis-

 proscribed citation to its unpublished opinions in unrelated cases since then.

98. In 2002, 3,463 cases were filed in the court of appeals for the Seventh Circuit.
Citing Unpublished Opinions in Federal Appeals

210

trict of Illinois and one is by the district court

for the Eastern District of New York. In addition, one case includes citations to a depublished opinion by the district court for the

Eastern District of Pennsylvania.

C7–1. In an unsuccessful appeal of a

conviction for a counterfeit check scheme,

United States v. Mustapha (7th Cir. 02–4000,

filed 11/12/2002, judgment 04/14/2004), resolved by published opinion at United States

v. George, 363 F.3d 666 (7th Cir. 2004), the appellant’s brief cites an opinion by the district

court for the Eastern District of Pennsylvania

that was initially published, but subsequently

withdrawn by the court and replaced by a

new published opinion. The brief acknowledges the vacation and reconsideration of the

depublished opinion, but cites it extensively

to support an argument against the reliability

of fingerprint identification. The court cited

the same depublished opinion in its rejection

of the appellant’s argument.

C7–2. In an unsuccessful pro se appeal

seeking habeas corpus relief for ineffective

assistance of counsel, United States v. Sims

(7th Cir. 02–2397, filed 05/30/2002, judgment

07/01/2003), resolved by docket judgment,

the government’s brief cites three unpublished district court opinions—two by the

district court for the Northern District of Illinois and one by the district court for the

Eastern District of New York.

The brief cites one unpublished opinion

by the district court for the Northern District

of Illinois to support a statement that “a large

number of unsuccessful pleadings” filed by

the appellant in district court “do not toll the

period in which to file a timely Rule 60(b)(6)

motion.” The brief cites the other unpublished opinion by the district court for the

district court for the Northern District of Illinois and a published opinion by the Northern District of Indiana to support a statement

that “The final order or judgment denying a

§ 2255 motion becomes effective when docketed.”

The brief cites an unpublished opinion

by the district court for the Eastern District of

New York and a published opinion by the

court of appeals for the Second Circuit to

support a statement that “What is a ‘reasonable time’ for purposes of Rule 60(b) is a

‘question to be answered in light of all the

circumstances.’” The brief also cites this unpublished opinion by the district court for the

Eastern District of New York and a published

opinion by the court of appeals for the Third

Circuit to support a statement that “Other

courts have held delays of roughly the same

time or less to be unreasonable under Rule

60(b)(6) where the errors alleged were or

should have been known earlier.”

C7–3. In an unsuccessful appeal by an

employer of bricklayers of a judgment in favor of the bricklayers’ union requiring an

audit of the employer’s payroll records, Bricklayers Local 21 of Illinois Apprenticeship and

Training Program v. Banner Restorations, Inc.

(7th Cir. 02–3512, filed 09/27/2002, judgment

09/22/2004), resolved by published opinion

at 385 F.3d 761, both parties cited an unpublished opinion by the district court for the

Northern District of Illinois. The employer

urged the court of appeals to follow the lead

of a district court judge in requiring a signed

agreement between an employer and a union

for the employer to be bound by a collective

bargaining agreement. The union countered

that the unpublished opinion is consistent

with the district court’s judgment in the case

appealed.

Individual Case Analyses

Miniat v. Ed Miniat Inc. (7th Cir. 02–1094, filed

01/11/2002, judgment 10/31/2002).

Appeal from: Northern District of Illinois.

What happened: Unsuccessful civil appeal in a

corporate governance case, in which the plaintiff

and appellant, an attorney, appeared pro se.

Appellee’s brief: The defendants’ 6,989-word

appellee brief cites 16 published opinions (five by

the Seventh Circuit, four by Illinois’s supreme

court, and seven by Illinois’s appellate court).
Citing Unpublished Opinions in Federal Appeals

211

Opinion: (3) The court’s 2,206-word published

signed opinion, Miniat v. Ed Miniat, Inc., 315 F.3d

712 (7th Cir. 2002) (nine headnotes), cites seven

published opinions (two by the Seventh Circuit,

three by Illinois’s supreme court, and two by Illinois’s appellate court). According to Westlaw

(03/22/2005), the court’s opinion has been cited

in three unpublished opinions (two by the Northern District of Illinois, one by another Seventh

Circuit district), five secondary sources, one Seventh Circuit appellate brief, one appellate brief in

another circuit, and five briefs in three Northern

District of Illinois cases.

Turner-El v. Moran (7th Cir. 02–1127, filed

01/15/2002, judgment 02/07/2002).

Appeal from: Northern District of Illinois.

What happened: Pro se prisoner appeal dismissed for failure to pay the docketing fee.

Opinion: (1) The court’s docket judgment cites

no opinions.

General Motors Corp. v. Murphy (7th Cir. 02–

1273, filed 02/04/2002, judgment 02/15/2002).

Appeal from: Southern District of Illinois.

What happened: Writ of mandamus granted to

recall district court’s remand.

Opinion: (1) The court’s docket judgment cites

no opinions.

Harris v. Schettle (7th Cir. 02–1357, filed

02/11/2002, judgment 04/16/2002).

Appeal from: Western District of Wisconsin.

What happened: Pro se prisoner appeal dismissed for failure to pay the docketing fee.

Opinion: (1) The court’s docket judgment cites

no opinions.

O’Neill v. Deuth (7th Cir. 02–1579, filed

03/08/2002, judgment 03/22/2002).

Appeal from: Northern District of Indiana.

What happened: Permission to file a successive

habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Whitacre v. United States (7th Cir. 02–1581, filed

03/08/2002, judgment 04/23/2002).

Appeal from: Northern District of Illinois.

What happened: Pro se appeal concerning motion to vacate a sentence voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Shah v. Village of Hoffman Estates (7th Cir. 02–

1587, filed 03/11/2002, judgment 05/13/2002).

Appeal from: Northern District of Illinois.

What happened: Civil appeal dismissed as settled.

Opinion: (1) The court’s docket judgment cites

no opinions.

Quinn v. Belhaven Convalescent Center, Inc. (7th

Cir. 02–1654, filed 03/18/2002, judgment

12/03/2002).

Appeal from: Northern District of Illinois.

What happened: Pro se civil appeal dismissed

for lack of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

Hadley v. Jockisch (7th Cir. 02–1691, filed

03/22/2002, judgment 02/06/2004).

Appeal from: Central District of Illinois.

What happened: Pro se prisoner’s unsuccessful

civil rights appeal.

Appellee’s brief: The prison’s 1,899-word appellee brief cites three published Seventh Circuit

opinions.

Opinion: (2) The court’s unpublished 373-word

order, Hadley v. Jockisch, 86 Fed. Appx. 998, 2004

WL 260283 (7th Cir. 2004) (no headnotes), cites

four published Seventh Circuit opinions. According to Westlaw (03/22/2005), the court’s order

has not been cited elsewhere.

United States v. Genova (7th Cir. 02–1725, filed

03/26/2002, judgment 05/09/2002).

Appeal from: Northern District of Illinois.

What happened: Criminal appeal voluntarily

dismissed. The appellant was mayor of Calumet

City, Illinois, and was convicted of using public

money personally.

Related cases: In a published opinion, United

States v. Genova, 333 F.3d 750 (7th Cir. 2003), the

court resolved four consolidated appeals: United

States v. Gulotta (7th Cir. 02–1602, filed

03/13/2002, judgment 06/20/2003) (affirming

criminal conviction and sentence but vacating and

remanding with respect to forfeiture issue), United

States v. Stack (7th Cir. 02–1650, filed 03/18/2002,

judgment 06/20/2003) (reversing RICO conviction), United States v. Stack (7th Cir. 02–1914, filed

04/15/2002, judgment 06/20/2003) (cross-appeal

reinstating convictions for personal use of public

money and remanding for sentencing), and United

States v. Genova (7th Cir. 02–2053, filed

04/26/2002, judgment 06/20/2003) (affirming

criminal conviction and sentence but vacating and

remanding with respect to forfeiture issue).

Opinion: (1) The court’s docket judgment cites

no opinions.
Citing Unpublished Opinions in Federal Appeals

212

Fredericksen v. City of Lockport (7th Cir. 02–1728,

filed 03/26/2002, judgment 11/25/2002).

Appeal from: Northern District of Illinois.

What happened: Civil appeal dismissed.

Related case: Talano v. City of Lockport (7th Cir.

00–1697, filed 03/17/2000, judgment 04/26/2001)

(complaint against city concerning demolition of

property dismissed for lack of jurisdiction).

Opinion: (1) The court’s docket judgment cites

no opinions.

Davis v. Indianapolis Public Schools (7th Cir. 02–

1735, filed 03/27/2002, judgment 05/21/2002).

Appeal from: Southern District of Indiana.

What happened: Civil appeal dismissed as settled.

Opinion: (1) The court’s docket judgment cites

no opinions.

Staple v. Ameritech Mobile Communications, Inc.

(7th Cir. 02–1780, filed 03/29/2002, judgment

09/11/2002).

Appeal from: Northern District of Illinois.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Morrow v. Vannatta (7th Cir. 02–1837, filed

04/05/2002, judgment 04/09/2003).

Appeal from: Northern District of Indiana.

What happened: Unsuccessful pro se appeal of a

denial of habeas corpus relief to a state prisoner

complaining of improper reduction in good-time

credits.

Related case: Morrow v. Vannatta (7th Cir. 02–

2270, filed 05/16/2002, judgment 07/25/2002)

(habeas corpus appeal dismissed for lack of jurisdiction).

Appellee’s brief: The respondent’s 7,005-word

appellee brief cites 27 published opinions (four by

the U.S. Supreme Court, 15 by the Seventh Circuit, six by other circuits, one by Illinois’s appellate court, and one by Wisconsin’s court of appeals).

Opinion: (2) The court’s 864-word unpublished

order, Morrow v. Vannatta, 64 Fed. Appx. 553, 2003

WL 1870721 (7th Cir. 2003) (five headnotes), cites

nine published opinions (three by the U.S. Supreme Court and six by the Seventh Circuit). According to Westlaw (03/22/2005), the court’s order has not been cited elsewhere.

United States v. Rose (7th Cir. 02–1927, filed

04/16/2002, judgment 07/31/2003).

Appeal from: Northern District of Illinois.

What happened: Criminal appeal dismissed for

failure to prosecute.

Related case: United States v. Rose (7th Cir. 02–

2007, filed 04/25/2002, judgment 07/31/2003)

(criminal appeal dismissed for failure to prosecute).

Opinion: (1) The court’s judgment cites no

opinions.

United States v. Payne (7th Cir. 02–1975, filed

04/22/2002, judgment 03/19/2003).

Appeal from: Southern District of Indiana.

What happened: Unsuccessful appeal of the sentence imposed for mail fraud and money laundering in a Ponzi scheme.

Related case: Consolidated with United States v.

Payne (7th Cir. 02–1976, filed 04/22/2002, judgment 03/19/2003) (unsuccessful appeal of the

same sentence as applied to a companion information).

Appellant’s brief: The defendant’s 4,380-word

appellant brief cites 22 published opinions (eight

by the U.S. Supreme Court, 12 by the Seventh Circuit, and two by other circuits) and one law review article.

Appellee’s brief: The government’s 4,426-word

appellee brief cites 22 published opinions (two by

the U.S. Supreme Court, 19 by the Seventh Circuit, and one by another circuit).

Appellant’s reply brief: The defendant’s 3,309-

word reply brief cites 26 published opinions (six

by the U.S. Supreme Court, 17 by the Seventh Circuit, two by other circuits, and one by a Seventh

Circuit district).

Opinion: (2) The court’s unpublished 2,613-

word order, United States v. Payne, 62 Fed. Appx.

648, 2003 WL 1796001 (7th Cir. 2003) (two headnotes), cites 20 published opinions (one by the

U.S. Supreme Court and 19 by the Seventh Circuit). According to Westlaw (03/22/2005), the

court’s order has been cited in one secondary

source.

United States v. Savage (7th Cir. 02–2141, filed

05/06/2002, judgment 02/14/2003).

Appeal from: Western District of Wisconsin.

What happened: Unsuccessful appeal of a drug

conviction.

Related cases: The selected case was consolidated with his wife’s appeal, which was voluntarily dismissed, United States v. Savage (7th Cir. 02–

2142, filed 05/06/2002, judgment 11/20/2002).

There also were unsuccessful appeals by other

codefendants, United States v. Koerth (7th Cir. 01–

3767, filed 10/24/2001, judgment 12/05/2002)
Citing Unpublished Opinions in Federal Appeals

213

and United States v. Boos (7th Cir. 02–3006, filed

08/02/2002, judgment 05/15/2003).

Appellant’s brief: The defendant’s 5,660-word

appellant brief cites eight published opinions

(three by the U.S. Supreme Court and five by the

Seventh Circuit).

Appellee’s brief: The government’s 5,631-word

appellee brief cites 18 published opinions (five by

the U.S. Supreme Court and 13 by the Seventh

Circuit) and the two codefendants’ appeals.

Appellant’s reply brief: The defendant’s 3,744-

word reply brief cites 10 published opinions (five

by the U.S. Supreme Court and five by the Seventh Circuit).

Opinion: (2) The court’s unpublished 3,106-

word order, United States v. Savage, 59 Fed. Appx.

821, 2003 WL 352045 (7th Cir. 2003) (three headnotes), cites six published opinions (two by the

U.S. Supreme Court and four by the Seventh Circuit, including the resolution of a codefendant’s

appeal). According to Westlaw (03/22/2005), the

Court’s opinion has been cited in one secondary

source.

Despiau v. Retirement Board (7th Cir. 02–2183,

filed 05/08/2002, judgment 07/03/2002).

Appeal from: Northern District of Illinois.

What happened: Civil appeal dismissed for want

of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

Sente-Estaban v. Immigration and

Naturalization Service (7th Cir. 02–2198, filed

05/10/2002, judgment 02/12/2003).

Appeal from: Board of Immigration Appeals.

What happened: Asylum appeal by a gay man,

who fled Guatemala because he was raped, voluntarily dismissed.

Petitioner’s brief: The petitioner’s 6,306-word

brief cites 20 published court opinions (one by the

U.S. Supreme Court, 15 by the Seventh Circuit,

and four by other circuits), one published opinion

by the Board of Immigration Appeals, two United

Nations handbooks, and three United States government reports.

Respondent’s brief: The government’s 6,732-

word respondent brief cites 22 published court

opinions (eight by the U.S. Supreme Court, eight

by the Seventh Circuit, and six by other circuits)

and three published opinions by the Board of

Immigration Appeals.

Petitioner’s reply brief: The petitioner’s 3,052-

word reply brief cites 11 published opinions (one

by the U.S. Supreme Court, four by the Seventh

Circuit, four by other circuits, one by the court of

military appeals, and one by Illinois’s appellate

court), one United Nations handbook, three

United States government reports, and two dictionaries.

Opinion: (1) The court’s docket judgment cites

no opinion.

United States v. Bridgeman (7th Cir. 02–2272,

filed 05/16/2002, judgment 10/29/2002).

Appeal from: Northern District of Indiana.

What happened: Certificate of appealability denied.

Related case: United States v. Bridgeman (7th Cir.

02–2425, filed 06/03/2002, judgment 06/25/2002)

(pro se prisoner appeal dismissed for lack of jurisdiction).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Rodriguez (7th Cir. 02–2296,

filed 05/21/2002, judgment 06/10/2002).

Appeal from: Northern District of Illinois.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Smith (7th Cir. 02–2318, filed

05/22/2002, judgment 06/20/2002).

Appeal from: Northern District of Illinois.

What happened: Criminal appeal voluntarily

dismissed as duplicative of appeal filed by counsel.

Related case: United States v. Smith (7th Cir. 02–

2396, filed 05/30/2002, judgment 06/25/2003)

(criminal appeal dismissed on a successful Anders

motion).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Sims (7th Cir. 02–2397, filed

05/30/2002, judgment 07/01/2003).

Appeal from: Northern District of Illinois.

What happened: Unsuccessful pro se appeal, by

a person convicted of dealing drugs, of the denial

of relief from judgment against his habeas corpus

petition alleging ineffective assistance of counsel.

Related cases: The court resolved other appeals

filed by the appellant, United States v. Sims (7th

Cir. 02–4138, filed 12/04/2002, judgment

07/20/2004) and United States v. Sims (7th Cir. 03–

1088, filed 01/13/2003, judgment 07/20/2004),

with a published opinion, United States v. Sims,

376 F.3d 705 (7th Cir. 2004) (affirming denial of

motion for return of seized property).

Appellee’s brief: The government’s 9,391-word

appellee brief cites 38 published opinions (eight
Citing Unpublished Opinions in Federal Appeals

214

by the U.S. Supreme Court; 17 by the Seventh Circuit, including one in a related appeal; seven by

other circuits; four by the Northern District of Illinois, including one in a related case; one by another Seventh Circuit district; and one by a district

in another circuit) and three unpublished opinions (two by the Northern District of Illinois and

one by a district in another circuit).

The brief cites an unpublished opinion by the

Northern District of Illinois to support the statement that “a large number of unsuccessful pleadings” filed by the appellant in district court “do

not toll the period in which to file a timely Rule

60(b)(6) motion.” (Page 25.)

The brief cites an unpublished opinion by the

Northern District of Illinois and a published opinion by the Northern District of Indiana to support

the statement, “The final order or judgment denying a § 2255 motion becomes effective when docketed.” (Pages 23–24.)

The brief cites an unpublished opinion by the

Eastern District of New York and a published

opinion by the Second Circuit to support the

statement, “What is a ‘reasonable time’ for purposes of Rule 60(b) is a ‘question to be answered

in light of all the circumstances.’” (Page 23.) The

brief also cites this unpublished opinion by the

Eastern District of New York and a published

opinion by the Third Circuit to support the statement, “Other courts have held delays of roughly

the same time or less to be unreasonable under

Rule 60(b)(6) where the errors alleged were or

should have been known earlier.” (Page 26.)

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Hendricks (7th Cir. 02–2693, filed

06/28/2002, judgment 02/21/2003).

Appeal from: Northern District of Indiana.

What happened: Unsuccessful appeal of a conviction and sentence for being a felon in possession of a firearm.

Appellant’s brief: The defendant’s 8,868-word

appellant brief cites 20 published opinions (five

by the U.S. Supreme Court, 13 by the Seventh Circuit, and two by other circuits).

Appellee’s brief: The government’s 8,172-word

appellee brief cites 24 published opinions (two by

the U.S. Supreme Court, 20 by the Seventh Circuit, and two by other circuits).

Appellant’s reply brief: The defendant’s 4,427-

word reply brief cites 14 published opinions

(three by the U.S. Supreme Court, 10 by the Seventh Circuit, and one by another circuit).

Opinion: (3) The court’s published 8,070-word

signed opinion, United States v. Hendricks, 319 F.3d

993 (7th Cir. 2003) (25 headnotes), cites 42 published opinions (12 by the U.S. Supreme Court, 27

by the Seventh Circuit, and three by other circuits). According to Westlaw (03/22/2005), the

court’s opinion has been cited in 13 Seventh Circuit opinions (five published and eight unpublished), one published opinion by another circuit,

one unpublished opinion by the Northern District

of Illinois, one unpublished opinion by another

Seventh Circuit district, two unpublished opinions by other districts, one unpublished opinion

in another state, three secondary sources, 10 appellate briefs in nine cases in other circuits, and

two trial court briefs in two cases in the Northern

District of Illinois.

Von Flowers v. Doyle (7th Cir. 02–2811, filed

07/15/2002, judgment 10/10/2002).

Appeal from: Eastern District of Wisconsin.

What happened: Pro se civil appeal dismissed

for failure to pay the filing fee.

Opinion: (1) The court’s docket judgment cites

no opinions.

Walls v. United States (7th Cir. 02–2843, filed

07/17/2002, judgment 12/03/2002).

Appeal from: Central District of Illinois.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s judgment cites no

opinions.

Danks v. Davis (7th Cir. 02–2971, filed

07/30/2002, judgment 01/21/2004).

Appeal from: Northern District of Indiana.

What happened: Unsuccessful appeal of the denial of habeas corpus relief for a murder trial delayed 61⁄2 years because of the defendant’s incompetence.

Appellant’s brief: The petitioner’s 6,916-word

appellant brief cites 28 published opinions (11 by

the U.S. Supreme Court; six by the Seventh Circuit; two by other circuits; three by Indiana’s supreme court; three by Indiana’s court of appeals,

including one opinion in an earlier phase of this

case; one by Michigan’s supreme court; one by

Montana’s supreme court; and one by Texas’s

court of criminal appeals) and one treatise.

Appellee’s brief: The government’s 4,296-word

appellee brief cites seven published opinions (four

by the U.S. Supreme Court, two by the Seventh

Circuit, and one by Indiana’s court of appeals in

an earlier phase of this case).

Appellant’s reply brief: The petitioner’s 2,485-

word reply brief cites 17 published opinions (nine

by the U.S. Supreme Court; one by the Seventh

Circuit; two by other circuits; one by Indiana’s
Citing Unpublished Opinions in Federal Appeals

215

court of appeals in an earlier phase of this case;

one by Kansas’s supreme court; one by Michigan’s supreme court; one by Ohio’s supreme

court; and one by Texas’s court of criminal appeals).

Opinion: (3) The court’s published 2,280-word

signed opinion, Danks v. Davis, 355 F.3d 1005 (7th

Cir. 2004) (four headnotes), cites 11 published

opinions (three by the U.S. Supreme Court, four

by the Seventh Circuit, three by other circuits, and

one by Indiana’s court of appeals in an earlier

phase of the case). According to Westlaw

(03/22/2005), the court’s opinion has been cited

in one unpublished Seventh Circuit opinion.

Szymanski v. Smith (7th Cir. 02–2977, filed

07/31/2002, judgment 08/13/2002).

Appeal from: Western District of Wisconsin.

What happened: Unsuccessful petition to file a

successive habeas corpus petition.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Whaley (7th Cir. 02–3016, filed

08/05/2002, judgment 09/19/2002).

Appeal from: Southern District of Indiana.

What happened: Criminal appeal voluntarily

dismissed.

Related case: United States v. Whaley (7th Cir. 02–

2951, filed 07/29/2002, judgment 09/19/2002)

(criminal appeal voluntarily dismissed).

Opinion: (1) The court’s docket judgment cites

no opinions.

Donovan v. Seher (7th Cir. 02–3089, filed

08/12/2002, judgment 05/15/2003).

Appeal from: Northern District of Illinois.

What happened: Civil appeal dismissed as settled.

Opinion: (1) The court’s docket judgment cites

no opinions.

Toles v. Bartow (7th Cir. 02–3287, filed

09/03/2002, judgment 10/09/2003).

Appeal from: Eastern District of Wisconsin.

What happened: Habeas corpus appeal dismissed for lack of prosecution.

Related case: Toles v. Bartow (7th Cir. 02–3286,

filed 09/03/2002, judgment 04/25/2003) (habeas

corpus appeal dismissed for lack of prosecution).

Opinion: (1) The court’s docket judgment cites

no opinions.

Wright v. Cotton (7th Cir. 02–3410, filed

09/17/2002, judgment 12/23/2002).

Appeal from: Southern District of Indiana.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Turner (7th Cir. 02–3438, filed

09/19/2002, judgment 12/17/2003).

Appeal from: Northern District of Indiana.

What happened: Unsuccessful appeal of a cocaine conviction. The appeal was consolidated

with an unsuccessful appeal of a separate cocaine

conviction, United States v. Turner (7th Cir. 02–

3437, filed 09/19/2002, judgment 12/17/2003).

For some reason, the defendant’s brief only addressed the consolidated appeal.

Appellant’s brief: The defendant’s 3,148-word

appellant brief cites 11 published opinions (three

by the U.S. Supreme Court, seven by the Seventh

Circuit, and one by Indiana’s supreme court).

Appellee’s brief: The government’s 3,863-word

appellee brief cites 16 published opinions (two by

the U.S. Supreme Court, 12 by the Seventh Circuit, one by another circuit, and one by Indiana’s

supreme court).

Appellant’s reply brief: The defendant’s 1,477-

word reply brief cites three published opinions

(two by other circuits and one by Indiana’s supreme court).

Opinion: (2) The court’s unpublished 1,089-

word order, United States v. Turner, 84 Fed. Appx.

670, 2003 WL 23018558 (7th Cir. 2003) (one headnote), cites three published opinions (one by the

Seventh Circuit, one by Indiana’s supreme court,

and one by Indiana’s court of appeals). According

to Westlaw (03/22/2005), the court’s order has

not been cited elsewhere.

Bricklayers Local 21 of Illinois Apprenticeship

and Training Program v. Banner Restorations,

Inc. (7th Cir. 02–3512, filed 09/27/2002, judgment

09/22/2004).

Appeal from: Northern District of Illinois.

What happened: An employer of bricklayers’

unsuccessful appeal of a judgment in favor of a

bricklayers’ union requiring an audit of the employer’s payroll records.

Appellant’s brief: The employer’s 12,100-word

appellant brief cites 15 published opinions (two

by the U.S. Supreme Court, eight by the Seventh

Circuit, four by other circuits, and one by a district in another circuit) and one unpublished opinion by the Northern District of Illinois.

The employer cites or discusses the unpublished district court opinion on eight pages scattered among the 39 pages of its brief. (Pages 4, 7–

8, 20–21, 28–30.) The employer urged the court of
Citing Unpublished Opinions in Federal Appeals

216

appeals to follow the lead of a district court judge

in requiring a signed agreement between an employer and a union for the employer to be bound

by a collective bargaining agreement.

Appellee’s brief: The union’s 4,816-word appellee brief cites 10 published opinions (five by the

Seventh Circuit, four by other circuits, and one by

the Northern District of Illinois) and one unpublished opinion by the Northern District of Illinois.

The union’s brief cites the same unpublished

district court opinion as cited by the employer’s

brief. The brief first cites it to support the statement that “The critical factors necessary for the

determination of whether Section 302 has been

complied with are (1) whether there is writing

that clearly refers to the collective bargaining

agreements and (2) whether the conduct of the

Defendants in paying past contributions and liquidated damages evidences an intent to be bound

by the collective bargaining despite the lack of a

written assent.” (Pages 14–15.) Later, the brief devotes nearly two pages to an argument that the

unpublished opinion is consistent with the district

court’s judgment in this case. (Pages 20–22.)

Appellant’s reply brief: The employer’s 5,827-

word reply brief cites 13 published opinions (one

by the U.S. Supreme Court, eight by the Seventh

Circuit, three by another circuit, and one by a district in another circuit) and one unpublished opinion by the Northern District of Illinois.

The employer’s reply brief devotes one quarter

of one page to a reminder that the same unpublished opinion cited in the other briefs supports

the appellant’s case. (Page 15.)

Opinion: (3) The court’s published 5,002-word

signed opinion, Bricklayers Local 21 of Illinois Apprenticeship and Training Program v. Banner Restoration, Inc., 385 F.3d 761 (7th Cir. 2004) (12 headnotes), cites 24 published opinions (two by the

U.S. Supreme Court, 12 by the Seventh Circuit,

and 10 by other circuits). According to Westlaw

(03/22/2005), the court’s opinion has been cited

in three secondary sources. The author of the

opinion’s published 556-word denial of a motion

to recall the mandate pending a petition to the

Supreme Court for a writ of certiorari, Bricklayers

Local 21 of Illinois Apprenticeship and Training Program v. Banner Restoration, Inc., 384 F.3d 911 (7th

Cir. 2004) (Ripple, J., in chambers) (two headnotes), cites eight published opinions (six by the

Seventh Circuit, including the main opinion in

this case, and two by another circuit). According

to Westlaw (03/22/2005), the judge’s opinion has

been cited in one secondary source.

United States v. Contreras (7th Cir. 02–3564, filed

10/01/2002, judgment 06/15/2004).

Appeal from: Northern District of Illinois.

What happened: Unsuccessful appeal of a drug

conviction consolidated with the government’s

successful appeal of downward sentencing departure for alien status and a codefendant’s unsuccessful appeal.

Related cases: Consolidated appeals include

United States v. Macedo (7th Cir. 02–3563, filed

10/01/2002, judgment 06/15/2004) (codefendant’s unsuccessful appeal) and United States v.

Contreras (7th Cir. 02–3842, filed 10/29/2002,

judgment 06/15/2004) (government’s successful

cross-appeal). An additional related appeal was

voluntarily dismissed, United States v. Macedo (7th

Cir. 02–3843, filed 10/29/2002, judgment

06/24/2003) (government’s cross-appeal voluntarily dismissed in codefendant’s case).

Appellant’s brief: The defendant’s 2,440-word

appellant brief cites eight published opinions

(seven by the Seventh Circuit and one by another

circuit).

Appellee’s brief: The government’s 9,898-word

appellee brief cites 43 published opinions (two by

the U.S. Supreme Court, 33 by the Seventh Circuit, and eight by other circuits).

Appellant’s reply brief: The defendant’s 3,660-

word reply brief cites 20 published opinions (four

by the U.S. Supreme Court, 12 by the Seventh Circuit, and four by other circuits).

Cross-appellant’s reply brief: The government’s

5,137-word reply brief cites 35 published opinions

(21 by the U.S. Supreme Court, four by the Seventh Circuit, nine by other circuits, and one by a

district in another circuit).

Opinion: (3) The court’s published 5,669-word

signed opinion, United States v. Macedo, 371 F.3d

957 (7th Cir. 2004) (nine headnotes), cites 41 published opinions (one by the U.S. Supreme Court,

36 by the Seventh Circuit, and four by other circuits). According to Westlaw (03/22/2005), the

court’s opinion has been cited in two Seventh Circuit opinions (one published and one unpublished), one unpublished opinion by the Northern

District of Illinois, two unpublished opinions by a

district in another circuit, one secondary source,

and one trial court brief in a Northern District of

Illinois case.

Cubie v. Walls (7th Cir. 02–3568, filed 10/01/2002,

judgment 12/24/2002).

Appeal from: Northern District of Illinois.

What happened: Certificate of appealability denied.
Citing Unpublished Opinions in Federal Appeals

217

Opinion: (1) The court’s docket judgment cites

no opinion.

Vickeroy v. Wisconsin Department of

Transportation (7th Cir. 02–3591, filed 10/03/2002,

judgment 07/31/2003).

Appeal from: Eastern District of Wisconsin.

What happened: Unsuccessful pro se appeal of a

civil action for damages relating to a traffic accident, dismissed as pursued on unavailable legal

theories.

Appellee’s brief: The 7,995-word appellee brief

by the state’s department of transportation, which

was alleged to have contributed to the accident

through faulty traffic signs, cites 70 published

opinions (19 by the U.S. Supreme Court, 30 by the

Seventh Circuit, four by other circuits, two by a

Seventh Circuit district, six by districts in other

circuits, six by Wisconsin’s supreme court, and

three by Wisconsin’s court of appeals), a related

case filed in state court, and the Restatement (Second) of Judgments.

Appellee’s brief: The 6,813-word appellee brief

by the city and county where the accident occurred, which were alleged to have responded to

the accident improperly, cites 31 published opinions (three by the U.S. Supreme Court, 15 by the

Seventh Circuit, two by other circuits, one by a

Seventh Circuit district, five by other districts,

four by Wisconsin’s supreme court, and one by

Wisconsin’s court of appeals).

Appellee’s brief: The 2,629-word appellee brief

by the other driver, his employer, the leasor of the

vehicle, and the driver’s insurance company cites

five published opinions (two by the U.S. Supreme

Court and three by the Seventh Circuit).

Opinion: (2) The court’s unpublished 687-word

order, Vickeroy v. Wisconsin Department of Transportation, 73 Fed. Appx. 172, 2003 WL 21782593

(7th Cir. 2003) (four headnotes), cites three U.S.

Supreme Court opinions. According to Westlaw

(03/21/2005), the court’s order has been cited in

one secondary source.

Taylor v. Geller (7th Cir. 02–3600, filed

10/04/2002, judgment 01/31/2003).

Appeal from: Northern District of Indiana.

What happened: Pro se prisoner appeal dismissed for failure to file a docketing statement.

Opinion: (1) The court’s docket judgment cites

no opinion.

Pursley v. Briley (7th Cir. 02–3640, filed

10/09/2002, judgment 01/24/2003).

Appeal from: Northern District of Illinois.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Wolf v. Ellis (7th Cir. 02–3726, filed 10/21/2002,

judgment 01/29/2003).

Appeal from: Western District of Wisconsin.

What happened: Pro se civil rights appeal dismissed for lack of jurisdiction.

Opinion: (1) The court’s docket judgment cites

no opinions.

Montaño v. City of Chicago (7th Cir. 02–3738,

filed 10/21/2002, judgment 07/13/2004).

Appeal from: Northern District of Illinois.

What happened: Defendants’ successful appeal

of the district court’s dismissal without prejudice

of federal civil rights claims pending resolution of

state claims in state court. The court held it was an

abuse of discretion to decline jurisdiction over the

state claims.

Related cases: Montaño v. City of Chicago (7th Cir.

01–4284, filed 12/20/2001, judgment 03/20/2002)

(interlocutory appeal challenging summary

judgment dismissed as premature), Montaño v.

City of Chicago (7th Cir. 02–1034, filed 01/07/2002,

judgment 03/20/2002) (cross-appeal of a stay

dismissed as untimely).

Appellant’s brief: The city’s 11,602-word appellant brief cites 41 published opinions (15 by the

U.S. Supreme Court, 21 by the Seventh Circuit,

one by another circuit, and four by Illinois’s appellate court).

Appellee’s brief: The plaintiffs’ 6,306-word appellee brief cites 11 published opinions (two by

the U.S. Supreme Court, five by the Seventh Circuit, three by other circuits, and one by the Northern District of Illinois) and an unpublished Seventh Circuit opinion from an earlier phase of this

case.

Appellant’s reply brief: The city’s 6,204-word reply brief cites 26 published opinions (eight by the

U.S. Supreme Court, 12 by the Seventh Circuit,

five by other circuits, and one by Illinois’s supreme court).

Opinion: (3) The court’s published 4,647-word

signed opinion, Montaño v. City of Chicago, 375

F.3d 593 (7th Cir. 2004) (10 headnotes), cites 47

published opinions (15 by the U.S. Supreme

Court, 28 by the Seventh Circuit, and four by

other circuits) and an unpublished Seventh Circuit opinion concerning an earlier phase of this

case. According to Westlaw (03/22/2005), the

court’s opinion has been cited in two published

Seventh Circuit opinions, two secondary sources,

and four trial briefs in four Northern District of

Illinois cases.
Citing Unpublished Opinions in Federal Appeals

218

Lemus-Rodriguez v. Ashcroft (7th Cir. 02–3908,

filed 11/04/2002, judgment 11/26/2003).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal holding that the firing of a rifle into the air to

celebrate the new year is not a cultural purpose.

Petitioner’s brief: The immigration petitioner’s

2,996-word brief cites 16 published opinions (nine

by the U.S. Supreme Court, five by the Seventh

Circuit, and two by another circuit).

Respondent’s brief: The government’s 3,660-

word respondent brief cites 16 published court

opinions (five by the U.S. Supreme Court, four by

the Seventh Circuit, and seven by other circuits)

and one published decision of the Board of Immigration Appeals.

Petitioner’s reply brief: The immigration petitioner’s 2,054-word reply brief cites 16 published

court opinions (nine by the Seventh Circuit, five

by other circuits, and two by districts in other circuits) and two published decisions of the Board of

Immigration Appeals.

Opinion: (3) The court’s published 1,536-word

signed opinion, Lemus-Rodriguez v. Ashcroft, 350

F.3d 652 (7th Cir. 2003) (six headnotes), cites 24

published opinions (one by the U.S. Supreme

Court, six by the Seventh Circuit, 15 by other circuits, and two by California’s court of appeal).

According to Westlaw (03/22/2005), the court’s

opinion has been cited in three published opinions (two by the Seventh Circuit and one by another circuit), three secondary sources, three appellate briefs in three cases in another circuit, and

one Northern District of Illinois trial brief.

Hayes v. Litscher (7th Cir. 02–3983, filed

11/12/2002, judgment 12/02/2002).

Appeal from: Eastern District of Wisconsin.

What happened: Pro se petition for writ of mandamus denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Mustapha (7th Cir. 02–4000,

filed 11/12/2002, judgment 04/14/2004).

Appeal from: Northern District of Illinois.

What happened: Unsuccessful appeal of a conviction for a counterfeit check scheme.

Related cases: A codefendant’s unsuccessful

criminal appeal was consolidated with the selected case, United States v. George (7th Cir. 02–

2996, filed 08/01/2002, judgment 04/14/2004).

Appellant’s brief: The defendant’s 10,382-word

appellant brief cites 16 published opinions (six by

the U.S. Supreme Court, eight by the Seventh Circuit, one by a district in another circuit, and one

by the District of Columbia’s court of appeals),

one depublished opinion by the Eastern District of

Pennsylvania, and a case in a district in another

circuit discussed by a cited opinion.

The brief cites an opinion by the Eastern District of Pennsylvania that was originally published, but subsequently vacated, withdrawn

from the Federal Supplement, and replaced by another published opinion, also cited by the brief.

The depublished opinion is cited to support the

statement, “Mr. Mustapha filed a motion in limine

to exclude the testimony of FBI fingerprint examiner Smith on January 29, 2000, prior to jury selection and shortly after an Eastern District of Pennsylvania court issued its January 7, 2002, landmark ruling barring fingerprint examiners from

presenting evaluation testimony as to their opinion that a particular latent print may be conclusively identified as belonging to a particular person on the grounds that such testimony is unreliable.” (Page 13.) The brief cites the depublished

opinion extensively in an 8-page discussion of the

reliability of fingerprint identification. (Pages 13–

20.)

Appellee’s brief: The government’s 11,975-word

appellee brief cites 36 published opinions (three

by the U.S. Supreme Court, 26 by the Seventh Circuit, five by other circuits, one by the Northern

District of Illinois, and one by a district in another

circuit).

Appellant’s reply brief: The defendant’s 3,092-

word reply brief cites four published opinions

(one by the U.S. Supreme Court, two by the Seventh Circuit, one by a Seventh Circuit district) and

the same depublished opinion by the Eastern District of Pennsylvania cited in the opening brief.

The reply brief devotes three pages to a discussion of fingerprint reliability, citing the unpublished opinion extensively. (Pages 1–4.)

Opinion: (3) The court’s published 3,765-word

signed opinion, United States v. George, 363 F.3d

666 (7th Cir. 2004) (29 headnotes), cites 20 published opinions (five by the U.S. Supreme Court,

12 by the Seventh Circuit, two by other circuits,

and one by a district in another circuit) and the

depublished opinion by Eastern District of Pennsylvania cited by the appellant. According to

Westlaw (03/21/2005), the court’s opinion has

been cited in one published opinion by the Seventh Circuit, one unpublished opinion by the

Northern District of Illinois, one published opinion by Indiana’s court of appeals, seven secondary

sources, and one trial brief in a Northern District

of Illinois case.
Citing Unpublished Opinions in Federal Appeals

219

Woodworth v. United States (7th Cir. 02–4016,

filed 11/15/2002, judgment 12/06/2002).

Appeal from: Northern District of Indiana.

What happened: Permission to file a successive

petition for habeas corpus relief denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Carter (7th Cir. 02–4031, filed

11/19/2002, judgment 04/28/2003).

Appeal from: Central District of Illinois.

What happened: Drug crime appeals of three

brothers dismissed on a successful consolidated

Anders motion.

Related cases: United States v. Carter (7th Cir. 02–

3973, filed 11/12/2002, judgment 04/28/2003)

and United States v. Carter (7th Cir. 02–3977, filed

11/12/2002, judgment 04/28/2003).

Anders brief: The appellants’ counsels’ 6,193-

word Anders brief cites 14 published opinions

(four by the U.S. Supreme Court, nine by the Seventh Circuit, and one by another circuit).

Opinion: (2) The court’s unpublished 1,427-

word order, United States v. Carter, 65 Fed. Appx.

559, 2003 WL 21018025 (7th Cir. 2003) (four headnotes), cites 19 published opinions (five by the

U.S. Supreme Court, 13 by the Seventh Circuit,

and one by another circuit). According to Westlaw

(03/22/2005), the court’s order has been cited in

one secondary source.

Gladney v. Davis (7th Cir. 02–4045, filed

11/21/2002, judgment 01/23/2003).

Appeal from: Northern District of Indiana.

What happened: Pro se prisoner appeal dismissed for failure to pay the filing fee.

Opinion: (1) The court’s docket judgment cites

no opinions.

Rosenthal v. St. John’s Northwestern Military

Academy, Inc. (7th Cir. 02–4091, filed 11/27/2002,

judgment 04/30/2003).

Appeal from: Northern District of Illinois.

What happened: Civil appeal voluntarily dismissed.

Related case: Rosenthal v. St. John’s Northwestern

Military Academy, Inc. (7th Cir. 02–3766, filed

10/23/2002, judgment 12/06/2002) (civil appeal

voluntarily dismissed).

Opinion: (1) The court’s docket judgment cites

no opinions.

Easley v. Parke (7th Cir. 02–4115, filed

12/02/2002, judgment 03/07/2003).

Appeal from: Southern District of Indiana.

What happened: Habeas corpus appeal dismissed for failure to prosecute.

Opinion: (1) The court’s docket judgment cites

no opinion.

Martin v. Hanks (7th Cir. 02–4402, filed

12/31/2002, judgment 02/14/2003).

Appeal from: Southern District of Indiana.

What happened: Appeal of the denial of habeas

corpus relief to a state prisoner dismissed.

Related case: Martin v. Hanks (7th Cir. 02–4403,

filed 12/31/2002, judgment 02/14/2003) (habeas

corpus appeal dismissed for lack of jurisdiction).

Opinion: (1) The court’s docket judgment cites

no opinions.

8. Eighth Circuit99

Unpublished opinions by the court of appeals

for the Eighth Circuit are not precedent; citation to them in unrelated cases is disfavored,

but permitted if they “have persuasive value”

and there is no published opinion on point.

100

Of the 50 cases randomly selected, 48 are

appeals from district courts (11 from the Eastern District of Missouri; eight from the

Eastern District of Arkansas; six from the

Western District of Missouri; five each from

 

99. Docket sheets and opinions are on PACER.

Opinions and most briefs are on the court’s Web and

intranet sites. (Of the 27 cases in this sample with counseled briefs, two briefs—one brief each in two cases—

are not on the court’s Web and intranet sites.) Opinions

and some briefs are on Westlaw. (Of the 27 cases in this

sample with counseled briefs, all briefs are on Westlaw

for three cases, some briefs are on Westlaw for seven

cases, and no briefs are on Westlaw for eight cases.)

100. 8th Cir. L.R. 28A(i) (“Unpublished opinions are

decisions which a court designates for unpublished

status. They are not precedent and parties generally

should not cite them. When relevant to establishing the

doctrines of res judicata, collateral estoppel, or the law

of the case, however, the parties may cite any unpublished opinion. Parties may also cite an unpublished

opinion of this court if the opinion has persuasive value

on a material issue and no published opinion of this or

another court would serve as well.”).

The court adopted a distinction between published

and unpublished opinions on January 1, 1973, and

originally prohibited citation to its unpublished opinions in unrelated cases. In 1996, the court amended its

rules to allow citation to unpublished opinions if they

are persuasive and there is no published opinion on

point.
Citing Unpublished Opinions in Federal Appeals

220

the Southern District of Iowa and the District

of Nebraska; four from the Western District

of Arkansas; and three each from the Northern District of Iowa, the District of Minnesota,

and the District of South Dakota),

101 one is an

appeal from the United States Tax Court, and

one is an appeal from the National Labor Relations Board.

102

The publication rate in this sample is

34%. Seventeen of the appeals were resolved

by published signed opinions (including one

with a concurrence and a dissent), 10 were

resolved by unpublished per curiam opinions

published in the Federal Appendix, and 23

were resolved by docket judgments.

Published opinions averaged 2,596

words in length, ranging from 1,521 to 6,149.

Unpublished opinions averaged 220 words in

length, ranging from 62 to 495. Ten opinions

were under 1,000 words in length (37%, all

unpublished), and all 10 of these were under

500 words in length.

Twenty of the appeals were fully

briefed. In 23 of the appeals no counseled

brief was filed, and in seven of the appeals a

counseled brief was filed only for one side.

There are citations to unpublished court

opinions in 12 of these cases. In four cases the

citations are only to opinions in related cases;

in eight cases there are citations to unpublished opinions in unrelated cases. All of the

citations to unrelated unpublished opinions

are in briefs, not opinions.

Four of the unrelated unpublished opinions cited are by the court of appeals for the

Eighth Circuit, two are by courts of appeals

for other circuits, two are by Eighth Circuit

district courts, three are by district courts in

other circuits, and five are by the United

States Tax Court.

 101. This sample did not include any appeals from

the District of North Dakota.

102. In 2002, 3,189 cases were filed in the court of

appeals for the Eighth Circuit.

C8–1. The State of Nebraska cited two

unpublished opinions by the court of appeals

for the Eighth Circuit in its appellee brief in

an unsuccessful pro se prisoner appeal,

Brunzo v. Clarke (8th Cir. 02–2553, filed

06/14/2002, judgment 03/06/2003), resolved

by unpublished opinion at 56 Fed. Appx. 753,

2003 WL 873986. Both of these opinions were

issued on rehearings following vacations of

published opinions cited by the pro se appellant, but the state cited the opinions for their

holdings concerning the constitutionality of

disciplinary segregation as well as to show

the invalidity of the appellant’s authorities.

C8–2. In an unsuccessful appeal that

challenged sentencing enhancements based

on the victim’s vulnerability and the fact that

the defendant physically restrained the victim during the offense, United States v. Brings

Plenty (8th Cir. 02–3971, filed 12/06/2002,

judgment 07/08/2003), resolved by published opinion at 335 F.3d 732, both parties

cited an unpublished opinion by the court of

appeals for the Eighth Circuit. The government cited the opinion in its appellee brief to

support a statement that “There appears [to

be] only one case in this circuit addressing

whether physical restraint enhancement applies in an instance in which a perpetrator

dragged his victim from room to room in the

course of assaulting her. In that case, this

Court upheld the imposition of the physical

restraint enhancement.” The defendant’s reply brief devotes more than a page to a discussion of this opinion, factually distinguishing it and also stating that “since Sazue decided the issue before it without discussion,

analysis, or citation to authority concerning

the issue before this Court, it provides no

persuasive value. Therefore, the government’s citation of the case is inconsistent with

Eighth Circuit Local Rule 28A(i).”

C8–3. In an unsuccessful criminal sentence appeal, United States v. Gammons (8th

Cir. 02–1003, filed 01/02/2002, judgment

10/02/2002), resolved by unpublished opin-
Citing Unpublished Opinions in Federal Appeals

221

ion at 47 Fed. Appx. 419, 2002 WL 31175539,

the government’s appellee brief cites an unpublished opinion of the court of appeals for

the Eighth Circuit to support its argument

that the defendant’s sentence was within the

sentencing guidelines range.

C8–4. An employee cited several unpublished opinions in both his appellant brief

and his reply brief in his successful appeal of

the district court’s conclusion that his previous discrimination settlement agreement

with his employer barred a challenge to denial of disability retirement benefits, Seman v.

FMC Corp. Retirement Plan (8th Cir. 02–1883,

filed 04/09/2002, judgment 07/01/2003), resolved by published opinion at 334 F.3d

728.

103 Two of these opinions are by courts of

appeals for other circuits, one is by the Eighth

Circuit district court from which the case is

appealed, and one is by a district court in another circuit.

Both briefs cite an unpublished opinion

from the court of appeals for the Tenth Circuit to support an argument that release of an

employer from future actions does not necessarily release the employer’s benefit plan. The

reply brief also notes that a published district

court opinion was reversed in part “on other

grounds” by an unpublished opinion by the

court of appeals for the Sixth Circuit.

The opening brief also quotes an unpublished opinion by the district court for the

Eastern District of Louisiana to support the

principle that release of an employer only

releases the benefit plan if the plan is unfunded so that an action against the plan is

really an action against the employer.

The brief cites an unpublished opinion

by the district court for the District of Massachusetts and a published opinion by Minnesota’s supreme court to support a statement

that “a court is to construe a settlement

agreement in a manner that reflects the intent

of the parties.”

 103. See on remand, 2004 WL 329237 (D. Minn. 2004).

C8–5. In an employer’s unsuccessful appeal of a remand to state court of a sexual

harassment case, Lindsey v. Dillard’s, Inc. (8th

Cir. 02–1455, filed 02/21/2002, judgment

10/07/2002), resolved by published opinion

at 306 F.3d 596, the employer cited an unpublished opinion by the district court for the

Western District of Missouri, in both its appellant brief and its reply brief, to support the

relevance of the amount of a settlement demand to the amount in controversy for jurisdictional purposes.

C8–6. In an unsuccessful pro se prisoner’s habeas corpus appeal, Gibson v. Reese

(8th Cir. 02–3030, filed 08/09/2002, judgment

02/10/2003), resolved by unpublished opinion at 55 Fed. Appx. 793, 2003 WL 262491, the

government’s appellee brief includes in a

string citation an unpublished opinion by the

district court for the Eastern District of Pennsylvania. The issue concerns applying custody credit for parole revocation to the sentence for the crime that violated the terms of

parole.

C8–7. In an unsuccessful pro se appeal

of the dismissal of an action to enjoin foreclosure on a mortgage, Young v. United States

Department of Housing and Urban Development

(8th Cir. 02–3117, filed 08/23/2002, judgment

10/20/2003), resolved by unpublished opinion at 78 Fed. Appx. 553, 2003 WL 22383010,

the Department of Housing and Urban Development’s appellee brief includes an unpublished opinion by the district court for the

Northern District of Texas in a string citation

concerning private rights of action against the

department under the Fair Housing Act.

C8–8. The Internal Revenue Service cited

five unpublished tax court opinions in its appellee brief in an unsuccessful pro se appeal

of a judgment denying a tax deduction for

law school expenses by a legal librarian, Galligan v. Commissioner of Internal Revenue (8th

Cir. 02–3734, filed 11/17/2002, judgment

04/15/2003), resolved by unpublished opinion at 61 Fed. Appx. 314, 2003 WL 1877174.
Citing Unpublished Opinions in Federal Appeals

222

The IRS’s brief cites two unpublished tax

court opinions to support a statement that

“The Tax Court has also denied deductions to

taxpayers who would have been economically disadvantaged by a switch to the career

for which they were newly qualified.” The

brief includes the other three in a string citation supporting a statement that “Courts

have thus routinely disallowed deductions

for the law school expenses of taxpayers in

any number of law-related occupations.”

Individual Case Analyses

United States v. Gammons (8th Cir. 02–1003,

filed 01/02/2002, judgment 10/02/2002).

Appeal from: Eastern District of Missouri.

What happened: Unsuccessful appeal concerning challenges to a criminal sentence, because the

sentencing agreement foreclosed the challenges.

Anders brief: The appellant’s counsel’s 6,602-

word Anders brief cites 23 published opinions

(two by the U.S. Supreme Court, seven by the

Eighth Circuit, and 14 by other circuits).

Appellee’s brief: The government’s 3,994-word

appellee brief cites 14 published opinions (two by

the U.S. Supreme Court and 12 by the Eighth Circuit) and one unpublished Eighth Circuit opinion.

The citation to the unpublished Eighth Circuit

opinion, headed by the word “see,” supports the

statement, “Furthermore, Gammons’ sentence of

168 months would have been within the applicable guideline range, even if Gammons had received a three level reduction for acceptance of

responsibility.” (Pages 21–22.) The government’s

brief does not acknowledge that the opinion cited

is unpublished.

Opinion: (2) A court’s unpublished 495-word

per curiam opinion, United States v. Gammons, 47

Fed. Appx. 419, 2002 WL 31175539 (8th Cir. 2002)

(no headnotes), cites eight published opinions

(two by the U.S. Supreme Court, five by the

Eighth Circuit, and one by another circuit). According to Westlaw (02/28/2005), the court’s

opinion has not been cited elsewhere.

Loveless v. United States (8th Cir. 02–1128, filed

01/15/2002, judgment 04/03/2002).

Appeal from: District of Nebraska.

What happened: Pro se prisoner’s petition for

permission to file a successive habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Leach v. Norris (8th Cir. 02–1253, filed 01/29/2002,

judgment 02/25/2002).

Appeal from: Western District of Arkansas.

What happened: Pro se prisoner’s application for

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

NLRB v. Wolfe Electric Co. (8th Cir. 02–1382,

filed 02/11/2002, judgment 12/24/2002).

Appeal from: National Labor Relations Board.

What happened: Successful petition by the

NLRB to enforce its order against Wolfe Electric

Company requiring that the company cease its

refusal to hire union members and requiring the

company to offer jobs to nine specific union

members whose applications for work the company had refused to consider. The International

Brotherhood of Electrical Workers, AFL-CIO, Local 265 intervened in support of the order.

Respondent’s brief: Wolfe Electric’s 7,139-word

brief cites 24 published court opinions (seven by

the U.S. Supreme Court, six by the Eighth Circuit,

and 11 by other circuits), 25 decisions of the National Labor Relations Board (24 published and

one unpublished), and one dictionary.

Intervenor’s brief: The union’s 13,617-word brief

cites 15 published court opinions (eight by the

U.S. Supreme Court and seven by the Eighth Circuit), 37 published decisions of the National Labor

Relations Board, and the Restatement (Second) of

Agency. All of the cited court opinions, except for

two U.S. Supreme Court opinions, had the NLRB

as a party. One of the published enforcements is

cited in its own right. One published enforcement

had not yet occurred when the brief was filed.

Petitioner’s brief: The NLRB’s 12,878-word brief

cites 46 published court opinions (13 by the U.S.

Supreme Court, 22 by the Eighth Circuit, and 11

by other circuits) and 30 published decisions of

the National Labor Relations Board. All of the

cited court opinions have the NLRB as a party.

Respondent’s reply brief: Wolfe’s 5,081-word reply brief cites 13 published court opinions (five by

the U.S. Supreme Court, five by the Eighth Circuit, and three by other circuits), 11 decisions of

the National Labor Relations Board (10 published

and one unpublished).

Opinion: (3) The court’s published 1,521-word

opinion, National Labor Relations Board v. Wolfe

Electric Co., 314 F.3d 325 (8th Cir. 2002) (four headnotes), cites three published Eighth Circuit

opinions and three published decisions of the Na-
Citing Unpublished Opinions in Federal Appeals

223

tional Labor Relations Board in addition to the

board’s subsequently published decision in this

case. According to Westlaw (02/28/2005), the

court’s opinion has been cited in one published

National Labor Relations Board decision, five secondary sources, one U.S. Supreme Court brief,

and one appellate brief in an Eighth Circuit case.

United States v. Stulock (8th Cir. 02–1401, filed

02/13/2002, judgment 10/25/2002).

Appeal from: Eastern District of Missouri.

What happened: Unsuccessful appeal that

claimed error in assessing enhancement for use of

a computer in connection with the transmission of

pornography, for obstruction of justice, and for

possession of child pornography depicting violence.

Appellant’s brief: The defendant’s 9,275-word

appellant brief cites 14 published opinions (one by

the U.S. Supreme Court and 13 by the Eighth Circuit).

Appellee’s brief: The government’s 6,593-word

appellee brief cites eight published opinions (one

by the U.S. Supreme Court, five by the Eighth Circuit, and two by another circuit).

Appellant’s reply brief: The defendant’s 2,659-

word reply brief cites eight published opinions

(two by the U.S. Supreme Court, five by the

Eighth Circuit, and one by another circuit).

Opinion: (3) The court’s published 1,645-word

opinion, United States v. Stulock, 308 F.3d 922 (8th

Cir. 2002) (six headnotes), cites five published

opinions (three by the Eighth Circuit and two by

another circuit). According to Westlaw

(02/28/2005), the court’s opinion has been cited

in two published Eighth Circuit opinions, one

published opinion by another circuit, one published opinion by a district in another circuit, one

unpublished opinion by a Virginia circuit court,

four secondary sources, and seven appellate briefs

in six cases (three in the Eighth Circuit and three

in other circuits).

Lindsey v. Dillard’s, Inc. (8th Cir. 02–1455, filed

02/21/2002, judgment 10/07/2002).

Appeal from: Western District of Missouri.

What happened: Unsuccessful appeal of the remand of a sexual harassment employment case to

state court. Plaintiff dismissed her claim under the

Americans with Disabilities Act and the trial court

remanded the state claims. The appellate court

held that although the district court remanded the

case on the erroneous grounds that it lacked jurisdiction over the case, the district court had discretion to decline supplemental jurisdiction over the

state claims. The court rejected the employer’s

argument that diversity of the parties made jurisdiction mandatory, because the employer did not

remove the case until the complaint was amended

to add the federal claim, by which time it was too

late to remove on diversity grounds.

Appellant’s brief: The employer’s 3,593-word

appellant brief cites 25 published opinions (four

by the U.S. Supreme Court, 12 by the Eighth Circuit, three by the Western District of Missouri,

five by other districts in the Eighth Circuit, and

one by Missouri’s court of appeals) and one unpublished opinion by the Western District of Missouri.

The unpublished opinion is included in a

string of two citations headed by “see also” in an

argument concerning the relevance of a settlement

demand in determining the amount in controversy. (Page 12.) The other opinion in the string

citation is a published opinion by the Eastern District of Missouri.

Appellee’s brief: The employee’s 906-word appellee brief cites three published opinions (one by

the Eighth Circuit and two by the Western District

of Missouri).

Appellant’s reply brief: The employer’s 1,026-

word reply brief cites 11 published opinions (six

by the Eighth Circuit, two by the Western District

of Missouri, two by other districts in the Eighth

Circuit, and one by Missouri’s court of appeals)

and one unpublished opinion by the Western District of Missouri.

The unpublished opinion cited in the reply

brief is the same as the one cited in the opening

brief.

Opinion: (3) The court’s published 1,981-word

opinion, Lindsey v. Dillard’s, Inc., 306 F.3d 596 (8th

Cir. 2002) (five headnotes), cites eight published

opinions (three by the U.S. Supreme Court, four

by the Eighth Circuit, and one by another circuit).

According to Westlaw (02/28/2005), the court’s

opinion has been cited in two Eighth Circuit opinions (one published and one unpublished), one

published opinion by another circuit, seven opinions by Eighth Circuit districts (four published

and three unpublished), two opinions by other

districts (one published and one unpublished),

five secondary sources, four appellate briefs in

four Eighth Circuit cases, and three trial court

briefs in three cases (one in an Eighth Circuit district and two in other districts).

Bowman v. Barnhart (8th Cir. 02–1497, filed

02/26/2002, judgment 11/20/2002).

Appeal from: Eastern District of Arkansas.

What happened: Successful appeal of a denial of

Social Security disability benefits. The court found
Citing Unpublished Opinions in Federal Appeals

224

that the administrative law judge erred in discounting the claimant’s allegations of disabling

pain.

Appellant’s brief: The claimant’s 4,836-word appellant brief cites 19 published opinions (two by

the U.S. Supreme Court and 17 by the Eighth Circuit) and two medical reference books.

Appellee’s brief: The commissioner’s 6,767-word

appellee brief cites 39 published opinions (one by

the U.S. Supreme Court and 38 by the Eighth Circuit), one related case filed in the Eastern District

of Arkansas, two Social Security rulings, and two

medical reference books.

Appellant’s reply brief: The claimant’s 3,624-

word reply brief cites 16 published opinions (12

by the Eighth Circuit and four by other circuits),

one Social Security ruling, one dictionary, and one

medical reference book.

Opinion: (3) The court’s published 2,057-word

opinion, Bowman v. Barnhart, 310 F.3d 1080 (8th

Cir. 2002) (11 headnotes), cites seven published

Eighth Circuit opinions and one medical reference

book. According to Westlaw (02/28/2005), the

court’s opinion has been cited in six Eighth Circuit

opinions (five published and one unpublished),

one published opinion by the Eastern District of

Arkansas, and three opinions by other Eighth Circuit districts (two published and one unpublished), eight secondary sources, and 13 appellate

briefs in 13 cases (10 in the Eighth Circuit and

three in other circuits).

Barnes v. City of St. Louis (8th Cir. 02–1547, filed

03/01/2002, judgment 03/26/2003).

Appeal from: Eastern District of Missouri.

What happened: Plaintiffs’ civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Gilreath v. State of Missouri (8th Cir. 02–1750,

filed 03/25/2002, judgment 06/04/2002).

Appeal from: Western District of Missouri.

What happened: Pro se prisoner’s application for

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Castaneda (8th Cir. 02–1768,

filed 03/26/2002, judgment 10/28/2002).

Appeal from: District of Nebraska.

What happened: Criminal appeal challenging a

refusal to grant a downward departure held unreviewable.

Appellant’s brief: The defendant’s 1,230-word

appellant brief cites four published Eighth Circuit

opinions.

Appellee’s brief: The government’s 1,034-word

appellee brief cites 10 published Eighth Circuit

opinions.

Opinion: (2) The court’s unpublished 233-word

per curiam opinion, United States v. Castaneda, 49

Fed. Appx. 92, 2002 WL 31409548 (8th Cir. 2002)

(no headnotes), cites three published Eighth Circuit opinions. According to Westlaw

(02/28/2005), the court’s opinion has been cited

in one appellate brief in an Eighth Circuit case.

Scott v. United States (8th Cir. 02–1815, filed

04/03/2002, judgment 05/14/2002).

Appeal from: Eastern District of Missouri.

What happened: Summary affirmance in a pro

se civil appeal.

Opinion: (1) The court’s docket judgment cites

no opinions.

Seman v. FMC Corp. Retirement Plan (8th Cir.

02–1883, filed 04/09/2002, judgment 07/01/2003).

Appeal from: District of Minnesota.

What happened: Successful appeal by a former

employee of the denial of disability retirement

benefits under ERISA, with a finding that the employee’s release of claims against his employer to

settle age and disability discrimination claims did

not release his claim for disability retirement

benefits.

Appellant’s brief: The employee’s 13,452-word

appellant brief cites 30 published opinions (one by

the U.S. Supreme Court, 14 by the Eighth Circuit,

nine by other circuits, five by districts in other

circuits, and one by Minnesota’s supreme court)

and three unpublished opinions (one by another

circuit, one by the District of Minnesota, and one

by a district in another circuit).

The brief quotes an unpublished Tenth Circuit

opinion to support the principle that release of an

employer does not necessarily imply release of the

employer’s benefit plan. (Pages 24–25.) The brief

notes that the Tenth Circuit cited a published district-court opinion by another circuit. The brief

adds a string of two “see also” citations—

published opinions by another circuit and a district in another circuit.

The brief quotes an unpublished opinion by

the Eastern District of Louisiana to support the

principle that release of an employer only releases

the benefit plan if the plan is unfunded so that an

action against the plan is really an action against

the employer. (Pages 26–27.)

The brief cites two opinions to support the

statement that “a court is to construe a settlement

agreement in a manner that reflects the intent of

the parties”—an unpublished opinion by the Dis-
Citing Unpublished Opinions in Federal Appeals

225

trict of Minnesota and a published opinion by

Minnesota’s supreme court.

Amicus brief: A 2,817-word amicus curiae brief

by AARP cites 22 published opinions (eight by the

U.S. Supreme Court, seven by the Eighth Circuit,

and seven by other circuits) and one law review

symposium.

Appellee’s brief: The employer’s 9,932-word appellant brief cites 38 published opinions (two by

the U.S. Supreme Court, 21 by the Eighth Circuit,

five by other circuits, five by the District of Minnesota, four by districts in other circuits, and one

by Minnesota’s court of appeals).

Appellant’s reply brief: The employee’s 6,945-

word reply brief cites 18 published opinions (nine

by the Eighth Circuit, five by other circuits, and

four by districts in other circuits) and two unpublished opinions by other circuits.

The reply brief cites the same unpublished

Tenth Circuit opinion as cited in the opening appellant brief—as part of a string of citations supporting the statement, “If an ERISA plan is a

funded plan, a waiver of claims against the employer that sponsors and administers the plan

does not release the plan.” (Page 2.) The three

other opinions in the string citation are a published opinion by the Fourth Circuit and two published opinions by districts in other circuits, one

of which is cited as reversed in part on other

grounds in an unpublished Sixth Circuit opinion.

Opinion: (3) The court’s published 2,531-word

opinion, Seman v. FMC Corp. Retirement Plan, 334

F.3d 728 (8th Cir. 2003) (seven headnotes), cites

eight published Eighth Circuit opinions. According to Westlaw (02/28/2005), the court’s opinion

has been cited in two published opinions by districts in other circuits, 14 secondary sources, two

briefs in one U.S. Supreme Court case, four appellate briefs in three cases (two in the Eighth Circuit

and one in another circuit), and 26 trial court

briefs in 18 cases (three in Eighth Circuit districts

and 15 in other districts).

Hornaday v. Kemna (8th Cir. 02–1982, filed

04/18/2002, judgment 07/10/2002).

Appeal from: Eastern District of Missouri.

What happened: Pro se state prisoner’s application for a certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Berry v. Graves (8th Cir. 02–2044, filed

04/25/2002, judgment 01/22/2003).

Appeal from: Southern District of Iowa.

What happened: Unsuccessful appeal of the denial of habeas corpus relief on ineffective assistance of counsel grounds.

Appellant’s brief: The petitioner’s 3,086-word

appellant brief cites 13 published opinions (seven

by the U.S. Supreme Court and six by the Eighth

Circuit).

Appellee’s brief: The state attorney general’s

3,826-word appellee brief cites 28 published opinions (eight by the U.S. Supreme Court, 10 by the

Eighth Circuit, six by other circuits, two by district

courts outside the circuit, one by Iowa’s supreme

court, and one opinion in an earlier phase of this

case by Iowa’s court of appeals) and one unpublished opinion by Iowa’s court of appeals in an

earlier phase of this case.

Opinion: (2) The court’s unpublished 188-word

per curiam opinion, Berry v. Graves, 55 Fed. Appx.

392, 2003 WL 145636 (8th Cir. 2003) (no headnotes), cites two published Eighth Circuit opinions. According to Westlaw (02/28/2005), the

court’s opinion has not been cited elsewhere.

United States v. Mack (8th Cir. 02–2061, filed

04/29/2002, judgment 09/12/2002).

Appeal from: Eastern District of Missouri.

What happened: Pro se prisoner’s unsuccessful

appeal of a refusal to modify his sentence for carjacking.

Appellee’s brief: The government’s 1,035-word

appellee brief cites no opinions.

Opinion: (2) The court’s 302-word unpublished

per curiam opinion, United States v. Mack, 45 Fed.

Appx. 559, 2002 WL 31027592 (8th Cir. 2002), cites

no opinions. According to Westlaw (03/21/2005),

the court’s opinion has not been cited elsewhere.

In re Purdy (8th Cir. 02–2157, filed 05/09/2002,

judgment 05/13/2002).

Appeal from: District of Minnesota.

What happened: Pro se petition for writ of mandamus denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Wells (8th Cir. 02–2233, filed

05/16/2002, judgment 10/17/2003).

Appeal from: District of Nebraska.

What happened: Unsuccessful appeal of a conviction for possession of crack cocaine.

Appellant’s brief: The defendant’s 4,252-word

appellant brief cites 14 published opinions (four

by the U.S. Supreme Court, seven by the Eighth

Circuit, and three by another circuit).

Appellee’s brief: The government’s 11,378-word

appellee brief cites 20 published opinions (five by
Citing Unpublished Opinions in Federal Appeals

226

the U.S. Supreme Court, 14 by the Eighth Circuit,

and one by another circuit).

Opinion: (3) The court’s published 3,907-word

opinion, United States v. Wells, 347 F.3d 280 (8th

Cir. 2003) (23 headnotes), cites 23 published opinions (six by the U.S. Supreme Court, 15 by the

Eighth Circuit, and two by other circuits). According to Westlaw (02/28/2005), the court’s opinion

has been cited in six Eighth Circuit opinions (five

published and one unpublished), seven secondary

sources, and four appellate briefs in four cases

(two in the U.S. Supreme Court and two in the

Eighth Circuit).

Butcher v. Norris (8th Cir. 02–2279, filed

05/21/2002, judgment 07/08/2002).

Appeal from: Western District of Arkansas.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Turner v. Blackburn (8th Cir. 02–2321, filed

05/23/2002, judgment 08/08/2002).

Appeal from: Western District of Arkansas.

What happened: Summary affirmance in a pro

se civil appeal.

Related cases: Turner v. United States President

(8th Cir. 02–2318, filed 05/23/2002, judgment

08/08/2002) (summary affirmance in a pro se civil

appeal), Turner v. Phillips (8th Cir. 02–2320, filed

05/23/2002, judgment 08/08/2002) (same).

Opinion: (1) The court’s docket judgment cites

no opinions.

Truitt v. United States (8th Cir. 02–2439, filed

06/05/2002, judgment 08/09/2002).

Appeal from: Western District of Missouri.

What happened: Civil appeal dismissed upon

joint motion.

Opinion: (1) The court’s docket judgment cites

no opinions.

Davidson v. Countryman (8th Cir. 02–2526, filed

06/13/2002, judgment 07/30/2002).

Appeal from: Southern District of Iowa.

What happened: Pro se civil appeal dismissed

for failure to pay the docketing fees.

Opinion: (1) The court’s docket judgment cites

no opinions.

Brunzo v. Clarke (8th Cir. 02–2553, filed

06/14/2002, judgment 03/06/2003).

Appeal from: District of Nebraska.

What happened: Unsuccessful pro se state prisoner appeal of a summary judgment. The prisoner

challenged his placement in “administrative confinement” as opposed to “general population.”

Appellee’s brief: The appellees’ 5,072-word brief

cites 27 published opinions (10 by the U.S. Supreme Court, eight by the Eighth Circuit, and nine

by other circuits) and two unpublished Eighth

Circuit opinions.

Both of the unpublished opinions cited were

on rehearing of vacated published opinions cited

by the appellant. The opinions were not cited only

to show that the appellant’s citations were vacated, but also for their holdings concerning the

constitutionality of disciplinary segregation. And

one of their holdings was cited before the discussion of appellant’s vacated citations: “This Circuit

has held that 30 days in disciplinary segregation

and approximately 290 days in administrative

segregation does not constitute an atypical and

significant hardship compared to the burdens of

ordinary prison life.” (Page 22.)

Opinion: (2) The court’s unpublished 145-word

per curiam opinion, Brunzo v. Clarke, 56 Fed.

Appx. 753, 2003 WL 873986 (8th Cir. 2003) (no

headnotes), cites three published Eighth Circuit

opinions. According to Westlaw (02/28/2005), the

court’s opinion has not been cited elsewhere.

In re Bey (8th Cir. 02–2571, filed 06/17/2002,

judgment 06/26/2002).

Appeal from: Eastern District of Missouri.

What happened: Pro se prisoner’s petition for

writ of mandamus denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Gillon (8th Cir. 02–2643, filed

06/24/2002, judgment 10/31/2003).

Appeal from: Northern District of Iowa.

What happened: Unsuccessful criminal appeal

that challenged the indictment on the ground that

it failed to allege drug quantity and a factual basis

for enhancement, claimed error in denial of a motion to suppress drugs found in the defendant's

vehicle, and claimed ineffective assistance of

counsel.

Related case: United States v. Gillon (8th Cir. 01–

1461, filed 02/23/2001, judgment 04/16/2001)

(appeal of the denial of a motion to suppress dismissed as premature).

Appellant’s brief: The defendant’s 6,345-word

appellant brief cites 20 published opinions (two

by the U.S. Supreme Court, eight by the Eighth

Circuit, eight by other circuits, and two by Iowa’s

supreme court).

Appellee’s brief: The government’s 8,105-word

appellee brief cites 53 published opinions (10 by
Citing Unpublished Opinions in Federal Appeals

227

the U.S. Supreme Court, 39 by the Eighth Circuit,

and four by other circuits) and two unpublished

judgments from an earlier appeal in this case.

Appellant’s reply brief: The defendant’s 6,877-

word reply brief cites 44 published opinions (six

by the U.S. Supreme Court, 23 by the Eighth Circuit, 13 by other circuits, one by New York’s appellate division, and one by North Carolina’s

court of appeals).

Opinion: (3) The court’s published 2,543-word

opinion, United States v. Gillon, 348 F.3d 755 (8th

Cir. 2003) (14 headnotes), cites 19 published opinions (six by the U.S. Supreme Court and 13 by the

Eighth Circuit). According to Westlaw

(02/28/2005), the court’s opinion has been cited

in four published Eighth Circuit opinions, one

published opinion by another circuit, five secondary sources, and four appellate briefs in four

Eighth Circuit cases.

Akins v. Arkansas Department of Correction (8th

Cir. 02–2645, filed 06/24/2002, judgment

08/20/2002).

Appeal from: Eastern District of Arkansas.

What happened: Pro se prisoner appeal dismissed for failure to pay the filing fees.

Opinion: (1) The court’s docket judgment cites

no opinions.

Avant v. Department of Agriculture (8th Cir. 02–

2723, filed 06/28/2002, judgment 09/30/2002).

Appeal from: Western District of Missouri.

What happened: Pro se civil appeal dismissed

for failure to file a brief.

Opinion: (1) The court’s docket judgment cites

no opinions.

Wesley v. Norris (8th Cir. 02–2852, filed

07/19/2002, judgment 10/17/2002).

Appeal from: Western District of Arkansas.

What happened: Pro se state prisoner’s petition

for permission to file a successive habeas corpus

petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Inge v. Luebbers (8th Cir. 02–2951, filed

08/01/2002, judgment 08/28/2002).

Appeal from: Eastern District of Missouri.

What happened: Pro se prisoner’s petition for

permission to file a successive habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Ewing v. Dormire (8th Cir. 02–2959, filed

08/01/2002, judgment 09/16/2002).

Appeal from: Western District of Missouri.

What happened: Pro se prisoner’s application for

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Eanes v. Bowersox (8th Cir. 02–2984, filed

08/05/2002, judgment 10/22/2002).

Appeal from: Eastern District of Missouri.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. McIntosh (8th Cir. 02–3014, filed

08/08/2002, judgment 08/20/2002).

Appeal from: Eastern District of Arkansas.

What happened: Unsuccessful pro se criminal

appeal concerning presentence guidelines.

Opinion: (1) The court’s docket judgment cites

no opinions.

Gibson v. Reese (8th Cir. 02–3030, filed

08/09/2002, judgment 02/10/2003).

Appeal from: District of Minnesota.

What happened: Pro se prisoner’s unsuccessful

appeal of the denial of habeas corpus relief for

failure to credit time served for parole revocation

in the sentence for the crime that violated the

terms of parole.

Appellee’s brief: The government’s 3,231-word

appellee brief cites seven published opinions (one

by the U.S. Supreme Court, four by the Eighth

Circuit, one by another circuit, and one by a district in another circuit) and one unpublished opinion by a district in another circuit.

The unpublished opinion cited is by the Eastern District of Pennsylvania. It appears second in

a two-cite string citation headed by “see” following a Supreme Court citation. The first citation in

the string is a published Eighth Circuit opinion.

The parenthetical for the unpublished citation

reads, “section 3585(b) precluded a federal prisoner from receiving prior custody credit on current sentence for time already credited against

parole violation sentence.” (Page 10.)

Opinion: (2) The court’s unpublished 294-word

per curiam opinion, Gibson v. Reese, 55 Fed. Appx.

793, 2003 WL 262491 (8th Cir. 2003) (no headnotes), cites two published opinions (one by the

U.S. Supreme Court and one by the Eighth Circuit). According to Westlaw (02/28/2005), the

court’s opinion has not been cited elsewhere.
Citing Unpublished Opinions in Federal Appeals

228

Young v. United States Department of Housing

and Urban Development (8th Cir. 02–3117, filed

08/23/2002, judgment 10/20/2003).

Appeal from: Eastern District of Arkansas.

What happened: Unsuccessful pro se appeal of

the dismissal of an action to enjoin foreclosure on

a mortgage. The Youngs received a HUD loan to

remodel their home, but failed to make payments

for 12 years. Ocwen Federal Bank, who bought

the loan from HUD, sought foreclosure in Arkansas state court. The Youngs claimed that a shower

broke because of faulty workmanship by a HUD

contractor and their debt should therefore be offset.

Related case: An earlier attempted interlocutory

appeal, Young v. Department of Housing and Urban

Development (8th Cir. 01–3046, filed 08/28/2001,

judgment 09/04/2001), was dismissed for lack of

an appealable order.

Appellee’s brief: HUD’s 1,858-word appellee

brief cites 20 published opinions (three by the U.S.

Supreme Court, one by the Eighth Circuit, nine by

other circuits, one by the Eastern District of Arkansas, and six by districts outside the Eighth Circuit) and one unpublished opinion by a district in

another circuit.

The unpublished opinion is a 1984 opinion by

the Northern District of Texas listed as the first of

four citations in a “see also” string citation following citation to a published opinion supporting the

principle that “the Fair Housing Act did not provide for a private right of action against HUD,

whose actions could only be challenged, if at all,

under the APA.” (Page 5.)

Appellee’s brief: Ocwen Bank’s 3,348-word appellee brief cites 10 published opinions (four by

the Eighth Circuit, five by other circuits, and one

by a district outside the Eighth Circuit).

Appellee’s brief: Appellees also included

Ocwen’s attorneys in the foreclosure action

against the Youngs. Their 2,724-word brief cites

six published opinions (one by the U.S. Supreme

Court, one by the Eighth Circuit, two by other

circuits, and two by Arkansas’s supreme court). In

addition, the brief cites a previous attempted interlocutory appeal by appellants in this case.

Opinion: (2) The court’s unpublished 149-word

per curiam opinion, Young v. United States Department of Housing and Urban Development, 78 Fed.

Appx. 553, 2003 WL 22383010 (8th Cir. 2003) (no

headnotes), cites one published opinion by the

Fifth Circuit. According to Westlaw (03/02/2005),

the court’s opinion has not been cited elsewhere.

United States v. Big Crow (8th Cir. 02–3142, filed

08/28/2002, judgment 11/12/2002).

Appeal from: District of South Dakota.

What happened: The government voluntarily

dismissed its appeal of a criminal sentence while

the defendant’s appeal of the conviction was

pending. The court ultimately decided that occupation of tribal property without paying rent does

not constitute theft.

Related case: United States v. Big Crow (8th Cir.

02–2917, filed 07/29/2002, judgment 05/05/2003)

(conviction reversed).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Brown (8th Cir. 02–3317, filed

09/18/2002, judgment 06/11/2003).

Appeal from: Eastern District of Arkansas.

What happened: Unsuccessful appeal of the district court’s refusal to accept the defendant’s

guilty plea.

Related case: United States v. Pennicot (8th Cir.

02–3895, filed 11/26/2002, judgment 06/11/2003)

(unsuccessful appeal by codefendant).

Appellant’s brief: The defendant’s 1,585-word

appellant brief cites eight published opinions (two

by the U.S. Supreme Court, four by the Eighth

Circuit, and two by other circuits).

Appellee’s brief: The government’s 10,047-word

appellee brief cites 18 published opinions (three

by the U.S. Supreme Court and 15 by the Eighth

Circuit).

Opinion: (3) The court’s published 1,844-word

opinion, United States v. Brown, 331 F.3d 591 (8th

Cir. 2003) (seven headnotes), cites nine published

opinions (one by the U.S. Supreme Court, seven

by the Eighth Circuit, and one by another circuit)

and one treatise. According to Westlaw

(02/28/2005), the court’s opinion has been cited

in one published Eighth Circuit opinion, one unpublished opinion by an Eighth Circuit district,

three secondary sources, and two appellate briefs

in two Eighth Circuit cases.

Holmes v. Chao (8th Cir. 02–3335, filed

09/19/2002, judgment 04/25/2003).

Appeal from: Eastern District of Missouri.

What happened: Unsuccessful pro se appeal of a

holding that the district court lacked jurisdiction

to review denial of federal workers’ compensation

benefits.

Appellee’s brief: The Secretary of Labor’s 4,994-

word appellee brief cites 30 published opinions

(nine by the U.S. Supreme Court, 13 by the Eighth

Circuit, and eight by other circuits).
Citing Unpublished Opinions in Federal Appeals

229

One Eighth Circuit opinion cited was decided

two months before the Secretary filed her brief,

and it originally was designated not for publication. But the brief states that two weeks before the

brief was filed it was ordered published. Originally published in the Federal Appendix, it now is

also in the Federal Reporter. The Westlaw record

does not show how the opinion came to be published. Both citations to this opinion in the brief

are in string citations including one other published Eighth Circuit opinion supporting the

proposition that denials of federal workers’ compensation benefits can be judicially reviewed only

in substantial, cognizable constitutional challenges.

Opinion: (2) The court’s 75-word unpublished

per curiam opinion, Holmes v. Chao, 61 Fed. Appx.

994, 2003 WL 1980369 (8th Cir. 2003) (no headnotes), cites one published Eighth Circuit opinion,

the opinion cited by the Secretary that originally

was not designated for publication but later ordered published. According to Westlaw

(02/28/2005), the index opinion has not been

cited elsewhere.

Eckford v. Arkansas (8th Cir. 02–3376, filed

09/26/2002, judgment 12/12/2002).

Appeal from: Eastern District of Arkansas.

What happened: Summary affirmance in a pro

se civil appeal.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Gibson (8th Cir. 02–3397, filed

09/27/2002, judgment 03/10/2003).

Appeal from: Southern District of Iowa.

What happened: Unsuccessful appeal of a criminal sentence based on the quantity of methamphetamine distributed.

Anders brief: The appellant’s counsel’s 1,033-

word Anders brief cites five published opinions

(one by the U.S. Supreme Court and four by the

Eighth Circuit).

Opinion: (2) The court’s unpublished 254-word

per curiam opinion, United States v. Gibson, 57 Fed.

Appx. 717, 2003 WL 1193737 (8th Cir. 2003) (no

headnotes), cites three published opinions (one by

the U.S. Supreme Court and two by the Eighth

Circuit). According to Westlaw (02/28/2005), the

court’s opinion has not been cited elsewhere.

Hensley v. Barnhart (8th Cir. 02–3512, filed

10/15/2002, judgment 12/09/2003).

Appeal from: Eastern District of Arkansas.

What happened: Initially a successful appeal of

the denial of disability benefits, on rehearing the

court ruled in favor of the commissioner and affirmed the district court’s denial of benefits.

Appellant’s brief: The claimant’s 8,823-word appellant brief cites 29 published opinions (two by

the U.S. Supreme Court and 27 by the Eighth Circuit), two Social Security rulings, and a medical

reference book.

Appellee’s brief: The commissioner’s 9,524-word

appellee brief cites 50 published opinions (three

by the U.S. Supreme Court, 46 by the Eighth Circuit, and one by the Eastern District of Arkansas),

one Social Security ruling, and four medical and

occupational reference books.

Appellant’s reply brief: The plaintiff’s 3,253-

word reply brief cites 11 published opinions (nine

by the Eighth Circuit and two by another circuit),

one Social Security ruling, and a medical reference

book.

Opinion: (3) The court’s original published

1,807-word opinion, Hensley v. Barnhart, 334 F.3d

768 (8th Cir. 2003) (three headnotes), cites seven

published Eighth Circuit opinions. According to

Westlaw (02/28/2005), the court’s opinion has

been cited in one unpublished Eighth Circuit

opinion, three published opinions by an Eighth

Circuit district, and one secondary source.

The court’s published 1,468-word opinion on

rehearing, Hensley v. Barnhart, 352 F.3d 353 (8th

Cir. 2003) (seven headnotes), cites 10 published

opinions (one by the U.S. Supreme Court and nine

by the Eighth Circuit). According to Westlaw

(02/28/2005), the court’s opinion has been cited

in eight published Eighth Circuit opinions, 15 unpublished opinions by an Eighth Circuit district,

seven secondary sources, and four appellate briefs

in three Eighth Circuit cases.

Hernandez v. Tarrell (8th Cir. 02–3520, filed

10/15/2002, judgment 08/21/2003).

Appeal from: District of South Dakota.

What happened: Successful appeal by a sheriff of

the denial of qualified immunity in a suit for

wrongful death arising from a high-speed chase.

Related case: Hernandez v. Jarman (8th Cir. 02–

3519, filed 10/15/2002, judgment 08/21/2003)

(successful appeal by a codefendant chief of police

of the denial of qualified immunity).

Appellant’s brief: The sheriff’s 6,123-word appellant brief cites 26 published opinions (four by

the U.S. Supreme Court, 16 by the Eighth Circuit,

five by other circuits, and one by a district in another circuit).

Appellee’s brief: The plaintiff’s 7,429-word appellee brief cites 22 published opinions (seven by

the U.S. Supreme Court, 11 by the Eighth Circuit,

and four by other circuits).
Citing Unpublished Opinions in Federal Appeals

230

Appellant’s reply brief: The sheriff’s 4,373-word

reply brief cites 36 published opinions (10 by the

U.S. Supreme Court, 18 by the Eighth Circuit,

seven by other circuits, and one by a district in

another circuit).

Opinion: (3) The court’s published 2,620-word

opinion, Hernandez v. Jarman, 340 F.3d 617 (8th

Cir. 2003) (14 headnotes), cites 11 published opinions (five by the U.S. Supreme Court and six by

the Eighth Circuit). According to Westlaw

(02/28/2005), the court’s opinion has been cited

in two opinions by another circuit (one published

and one unpublished), four unpublished opinions

by Eighth Circuit districts, one published opinion

by another district, five secondary sources, and

four appellate briefs in three cases (two in the

Eighth Circuit and one in another circuit).

In re Souders (8th Cir. 02–3649, filed 10/30/2002,

judgment 01/02/2003).

Appeal from: Eastern District of Missouri.

What happened: Pro se prisoner’s petition for

writ of mandamus denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Galligan v. Commissioner of Internal Revenue

(8th Cir. 02–3734, filed 11/17/2002, judgment

04/15/2003).

Appeal from: United States Tax Court.

What happened: Unsuccessful pro se appeal of a

judgment denying a tax deduction for law school

expenses by a legal librarian, Galligan v. Commissioner of Internal Revenue, T.C. Memo. 2002–150, 83

T.C.M. (CCH) 1859, 2002 WL 1300002. In a brief

unpublished opinion, the appellate court affirmed

the tax court “for the reasons explained by the tax

court.”

Appellee’s brief: The government’s 5,465-word

brief cites 12 published court opinions (two by the

Eighth Circuit, two by other circuits, one by an

Eighth Circuit district, and seven by the tax

court); six unpublished tax court opinions, including the tax court’s opinion in this case; two published revenue rulings; and one private letter ruling.

Two unpublished tax court opinions are cited

as the support for a statement that “The Tax Court

has also denied deductions to taxpayers who

would have been economically disadvantaged by

a switch to the career for which they were newly

qualified.” (Page 16.) Three unpublished tax court

opinions were cited in a string citation led by a

citation to a published tax court opinion, supporting a statement that “Courts have thus routinely

disallowed deductions for the law school expenses of taxpayers in any number of law-related

occupations.” (Page 21.) The private letter ruling

was first cited by the taxpayers and is cited by the

government in a footnote to distinguish the facts

in that case and to remind the court that “private

letter rulings may not be used or cited as precedent.” (Page 20, note 9.)

Opinion: (2) The court’s unpublished 62-word

per curiam opinion, Galligan v. Commissioner of

Internal Revenue, 61 Fed. Appx. 314, 2003 WL

1877174 (8th Cir. 2003) (no headnotes), cites no

opinions. According to Westlaw (03/02/2005), the

affirmance was noted in the Federal Tax Coordinator in four citations to the tax court’s decision.

Evergreen Investments, LLC v. FCL Graphics, Inc.

(8th Cir. 02–3762, filed 11/12/2002, judgment

07/02/2003).

Appeal from: Western District of Missouri.

What happened: Unsuccessful appeal of a summary judgment decision that a letter of intent did

not constitute a binding agreement to sell a corporation. The courts and parties agreed that Illinois

law governed the action.

Appellant’s brief: The plaintiff’s 8,845-word appellant brief cites 31 published opinions (two by

the Eighth Circuit, 10 by other circuits, six by district courts outside the circuit, six by Illinois’s supreme court, six by Illinois’s appellate courts, and

one by a Texas appellate court), two unpublished

orders by the district court in this case, and one

treatise.

Appellee’s brief: The defendant’s 4,315-word

appellee brief cites 23 published opinions (one by

the U.S. Supreme Court, two by the Eighth Circuit, four by another circuit, five by Illinois’s supreme court, and 11 by Illinois’s appellate courts)

and one treatise.

Appellant’s reply brief: The plaintiff’s 4,664-

word reply brief cites 28 published opinions

(seven by another circuit, four by districts in other

circuits, three by Illinois’s supreme court, and 14

by Illinois’s appellate courts) and two dictionaries.

Opinion: (3) The court’s published 3,212-word

opinion, Evergreen Investments, LLC v. FCL Graphics, Inc., 334 F.3d 750 (8th Cir. 2003) (12 headnotes), cites 23 published opinions (one by the

U.S. Supreme Court, nine by the Eighth Circuit,

six by another circuit, two by Illinois’s supreme

court, and five by Illinois’s appellate courts). According to Westlaw (02/28/2005), the court’s

opinion has been cited in eight published Eighth

Circuit opinions, three published opinions by an

Eighth Circuit bankruptcy court, three secondary

sources, three appellate briefs in three Eighth Cir-
Citing Unpublished Opinions in Federal Appeals

231

cuit cases, and one trial court brief in an Eighth

Circuit district.

United States v. Aguilar-Portillo (8th Cir. 02–

3817, filed 11/18/2002, judgment 07/01/2003).

Appeal from: Northern District of Iowa.

What happened: Unsuccessful criminal appeal of

a drug conviction consolidated with a partially

successful cross-appeal by the government. The

court reversed a downward departure for cultural

assimilation.

Related case: United States v. Aguilar-Portillo (8th

Cir. 02–4093, filed 12/19/2002, judgment

07/01/2003) (government’s cross-appeal).

Appellant’s brief: The defendant’s 2,904-word

appellant brief cites nine published opinions

(seven by the Eighth Circuit, one by another circuit, and one by the Northern District of Iowa).

Cross-appellant’s brief: The government’s 9,361-

word cross-appellant and appellee brief cites 49

published opinions (three by the U.S. Supreme

Court, 37 by the Eighth Circuit, eight by other circuits, and one by a district in another circuit).

Appellant’s reply brief: The defendant’s 3,651-

word reply brief cites nine published opinions

(two by the U.S. Supreme Court, four by the

Eighth Circuit, and three by other circuits).

Cross-appellant’s reply brief: The government’s

1,098-word reply brief cites seven published opinions (one by the U.S. Supreme Court, three by the

Eighth Circuit, and three by other circuits).

Opinion: (3) The court’s published 1,998-word

opinion, United States v. Aguilar-Portillo, 334 F.3d

744 (8th Cir. 2003) (16 headnotes), cites 18 published opinions (two by the U.S. Supreme Court,

14 by the Eighth Circuit, and two by other circuits). According to Westlaw (02/28/2005), the

court’s opinion has been cited in 10 Eighth Circuit

opinions (six published and four unpublished),

three published opinions by another circuit, one

published opinion by a district in another circuit,

six secondary sources, and 17 appellate briefs in

17 cases (13 in the Eighth Circuit and four in another circuit).

United States v. Brings Plenty (8th Cir. 02–3971,

filed 12/06/2002, judgment 07/08/2003).

Appeal from: District of South Dakota.

What happened: Unsuccessful appeal that challenged sentencing enhancements based on the

victim’s vulnerability and the fact that the defendant physically restrained the victim during the

offense.

Appellant’s brief: The defendant’s 3,851-word

appellant brief cites 27 published opinions (one by

the U.S. Supreme Court, seven by the Eighth Circuit, 16 by other circuits, and three by South Dakota’s supreme court) and Black’s Law Dictionary.

Appellee’s brief: The government’s 2,942-word

appellee brief cites 14 published opinions (eight

by the Eighth Circuit and six by other circuits)

and one unpublished Eighth Circuit opinion.

The unpublished opinion is cited to support

the statement, “There appears [to be] only one

case in this circuit addressing whether physical

restraint enhancement applies in an instance in

which a perpetrator dragged his victim from

room to room in the course of assaulting her. In

that case, this Court upheld the imposition of the

physical restraint enhancement.” (Page 11.)

Appellant’s reply brief: The defendant’s 2,531-

word reply brief cites 11 published opinions (six

by the Eighth Circuit and five by other circuits)

and one unpublished Eighth Circuit opinion.

The defendant’s reply brief devotes more than

a page to a discussion of the unpublished Eighth

Circuit opinion cited by the government. The reply brief states: “since Sazue decided the issue before it without discussion, analysis, or citation to

authority concerning the issue before this Court, it

provides no persuasive value. Therefore, the government’s citation of the case is inconsistent with

Eighth Circuit Local Rule 28A(i).” (Page 10.) The

brief then factually distinguishes the unpublished

opinion.

Opinion: (3) The court’s published 1,947-word

opinion, United States v. Plenty, 335 F.3d 732 (8th

Cir. 2003) (four headnotes), cites 11 published

opinions (one by the U.S. Supreme Court, six by

the Eighth Circuit, three by other circuits, and one

by South Dakota’s supreme court) and Black’s Law

Dictionary. According to Westlaw (02/28/2005),

the court’s opinion has been cited in one published Eighth Circuit opinion, one published opinion by another circuit, and three secondary

sources.

Bentley v. Harmon (8th Cir. 02–4038, filed

12/16/2002, judgment 04/09/2003).

Appeal from: Eastern District of Arkansas.

What happened: Summary affirmance in a pro

se state prisoner’s appeal.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Rowland, (8th Cir. 02–4108, filed

12/23/2002, judgment 09/03/2003).

Appeal from: Southern District of Iowa.

What happened: Unsuccessful appeal of a conviction for possession of a firearm by a felon upon

a guilty plea following a denied motion to suppress search of a vehicle.
Citing Unpublished Opinions in Federal Appeals

232

Appellant’s brief: The defendant’s 3,206-word

appellant brief cites 10 published opinions (two

by the U.S. Supreme Court and eight by the

Eighth Circuit).

Appellee’s brief: The government’s 2,706-word

appellee brief cites 14 published opinions (three

by the U.S. Supreme Court, eight by the Eighth

Circuit, and three by other circuits).

Appellant’s reply brief: The defendant’s 648-

word reply brief cites two published Eighth Circuit opinions.

Opinion: (3) The court’s published 4,707-word

opinion, United States v. Rowland, 341 F.3d 774 (8th

Cir. 2003) (22 headnotes), cites 26 published opinions (seven by the U.S. Supreme Court, 15 by the

Eighth Circuit, three by other circuits, and one by

the Southern District of Iowa) and the unpublished district court opinion in this case. According to Westlaw (02/28/2005), the court’s opinion

has been cited in three Eighth Circuit opinions

(two published and one unpublished), four opinions by Eighth Circuit districts (one published and

three unpublished) one published opinion by

Ohio’s court of appeals, four secondary sources,

and one appellate brief in one Eighth Circuit case.

United States v. Collins (8th Cir. 02–4131, filed

12/26/2002, judgment 11/21/2003).

Appeal from: Southern District of Iowa.

What happened: Successful criminal appeal. The

defendant was a police officer who had returned

money and guns seized from a drug user who

became an informant after the seizure. One condition of his status as an informant was that he not

use illegal drugs. After his cover had been blown

and he could no longer work as an informant, he

requested return of his seized property. The police officer returned the guns and some of the

money seized, keeping the rest for the department. The police officer was convicted of disposing of firearms to an unlawful user of controlled

substances. The defendant argued on appeal that

the jury instruction requiring the government “to

prove that at the time the firearms were returned,

the Defendant knew or had reasonable cause to

believe there was a risk that Mr. Chepanonis

would unlawfully use a controlled substance

while in possession of the firearms” failed to require proof that the Mr. Chepanonis was a user of

controlled substances. The defendant also appealed an upward sentencing departure and failure to grant a downward departure. The government cross-appealed a downward departure,

United States v. Collins (8th Cir. 03–1239, filed

01/27/2003, judgment 11/21/2003). The court of

appeals held that the conviction should be reversed because the trial judge constructively

amended the indictment by broadening the scope

of the relevant statute considerably when the

judge instructed the jury that an unlawful user of

a controlled substance included someone with a

risk of unlawful use. Because the court reversed

the conviction, it did not address the sentencing

issues.

Appellant’s brief: The defendant’s 10,523-word

appellant brief cites 30 published opinions (three

by the U.S. Supreme Court, 22 by the Eighth Circuit, and five by other circuits).

Appellee’s brief: The government’s 9,686-word

appellee and cross-appellant brief cites 41 published opinions (five by the U.S. Supreme Court,

26 by the Eighth Circuit, nine by other circuits,

and one by an Eighth Circuit district).

Appellant’s reply brief: The defendant’s 3,360-

word reply brief cites nine published opinions

(one by the U.S. Supreme Court, six by the Eighth

Circuit, and two by other circuits).

Cross-appellant’s reply brief: The government’s

1,416-word reply brief cites 15 published opinions

(eight by the U.S. Supreme Court, six by the

Eighth Circuit, and one by another circuit).

Opinion: (3) The court’s published 1,941-word

opinion, United States v. Collins, 350 F.3d 773 (8th

Cir. 2003) (three headnotes), cites six published

Eighth Circuit opinions. According to Westlaw

(02/28/2005), the court’s opinion has been cited

in one unpublished opinion by an Eighth Circuit

district, one published opinion by North Carolina’s court of appeals, and three secondary

sources.

Doe v. Nelson (8th Cir. 02–4135, filed 12/27/2002,

judgment 08/20/2003).

Appeal from: District of Nebraska.

What happened: Unsuccessful appeal of the

dismissal of a complaint challenging a school

board member’s leading the audience in prayer at

a public school graduation.

Appellant’s brief: The student’s 13,569-word appellant brief cites 42 published opinions (26 by the

U.S. Supreme Court, 10 by the Eighth Circuit, two

by other circuits, three by Eighth Circuit districts,

and one by Nebraska’s supreme court) and the

Bible.

Amicus brief: A 3,778-word amicus curiae brief

by the Anti-Defamation League cites 23 published

opinions (18 by the U.S. Supreme Court, three by

other circuits, one by an Eighth Circuit district,

and one by Nebraska’s supreme court).

Appellee’s brief: The school board member’s

4,322-word appellee brief cites 18 published opinions (11 by the U.S. Supreme Court, four by the
Citing Unpublished Opinions in Federal Appeals

233

Eighth Circuit, two by other circuits, and one by

the District of Nebraska).

Appellee’s brief: The school district’s 13,811-

word appellee brief cites 63 published opinions

(12 by the U.S. Supreme Court, 35 by the Eighth

Circuit, nine by other circuits, three by districts in

other circuits, two by Nebraska’s supreme court,

and two by Nebraska’s court of appeals).

Appellant’s reply brief: The student’s 4,719-word

reply brief cites 23 published opinions (eight by

the U.S. Supreme Court, four by the Eighth Circuit, two by other circuits, three by Eighth Circuit

districts, one by a district in another circuit, two

by Nebraska’s supreme court, one by Oregon’s

supreme court, one by Oregon’s court of appeals,

and one by California’s court of appeal).

Opinion: (3) The court’s published 6,149-word

opinion, concurrence, and dissent, Doe v. School

District of the City of Norfolk, 340 F.3d 605 (8th Cir.

2003) (11 headnotes), cites 38 published opinions

(16 by the U.S. Supreme Court, 11 by the Eighth

Circuit, eight by other circuits, one by the District

of Nebraska, and two by Nebraska’s supreme

court). According to Westlaw (02/28/2005), the

court’s opinion has been cited in five Eighth Circuit opinions (three published and two unpublished), one published opinion by an Eighth Circuit district, nine secondary sources, five appellate

briefs in three Eighth Circuit cases, and four trial

court briefs in four cases (three in the District of

Nebraska and one in another Eighth Circuit district).

Cisar v. Home Depot U.S.A., Inc. (8th Cir. 02–

4148, filed 12/30/2002, judgment 12/08/2003).

Appeal from: Northern District of Iowa.

What happened: Unsuccessful appeal of a jury

verdict in favor of the defendant on product liability negligence claim.

Related case: Cisar v. Home Depot U.S.A., Inc.

(8th Cir. 03–1097, filed 01/10/2003, judgment

12/08/2003) (defendant’s cross-appeal mooted by

plaintiffs’ unsuccessful appeal).

Appellant’s brief: The plaintiffs’ 4,136-word appellant brief cites 11 published opinions (nine by

the Eighth Circuit, one by another circuit, and one

by Iowa’s supreme court) and the Restatement

(Third) of Torts.

Appellee’s brief: The defendant’s 5,612-word

appellee and cross-appellant brief cites 17 published opinions (nine by the Eighth Circuit and

eight by Iowa’s supreme court).

Appellant’s reply brief: The plaintiffs’ 2,162-

word reply brief cites 12 published opinions

(eight by the Eighth Circuit, one by another circuit, and three by Iowa’s supreme court).

Cross-appellant’s reply brief: The defendant’s

843-word reply brief cites four published opinions

(two by the Eighth Circuit and two by Iowa’s supreme court).

Opinion: (3) The court’s published 1,715-word

opinion, Cisar v. Home Depot U.S.A., Inc., 351 F.3d

800 (8th Cir. 2003) (five headnotes), cites two published Eighth Circuit opinions. According to

Westlaw (02/28/2005), the court’s opinion has not

been cited elsewhere.

9. Ninth Circuit104

The court of appeals for the Ninth Circuit

does not permit citation to its unpublished

opinions in unrelated cases.

105

Of the 50 cases randomly selected, 36 are

appeals from district courts (10 from the Central District of California; six from the Southern District of California; four from the District of Arizona; three each from the Eastern

District of California, the Northern District of

California, the District of Nevada, and the

Western District of Washington; two from the

District of Idaho; and one each from the District of Alaska and the District of Montana)

106

 

104. Docket sheets are on PACER. Published opinions are on the court’s website and intranet site, and on

Westlaw. Unpublished memorandum dispositions are

on Westlaw and some are also on the court’s intranet

site. (Of the 12 cases in this sample resolved by unpublished memorandum dispositions, the memoranda are

on the court’s intranet site for four cases.) For cases

resolved by published opinions or unpublished memorandum dispositions, most briefs are on Westlaw. (Of

the 14 cases in this sample with counseled briefs resolved by opinion or memorandum disposition, all

briefs are on Westlaw for 10 cases and some briefs are

on Westlaw for two cases.)

105. 9th Cir. L.R. 36–3(b) (“Unpublished dispositions and orders of this Court may not be cited to or by

the courts of this circuit, except in the following circumstances. [Enumerated related-case circumstances follow.]”).

The court adopted a distinction between published

and unpublished opinions on March 1, 1973, and has

proscribed citation to its unpublished opinions since

then.

106. This sample does not include any appeals from

the District of Guam, the District of Hawaii, the District
Citing Unpublished Opinions in Federal Appeals

234

and 14 are appeals from the Board of Immigration Appeals.

107

The publication rate in this sample will

be either 6% or 8% once all of the cases are

resolved. Three of the appeals were resolved

by published signed opinions, 12 were resolved by unpublished memorandum opinions published in the Federal Appendix (including one with a dissent), 34 were resolved

by docket judgments, and one case has not

yet been resolved.

Published opinions averaged 2,284

words in length, ranging from 1,632 to 3,108.

Unpublished opinions averaged 557 words in

length, ranging from 123 to 1,495. Ten opinions were under 1,000 words in length (67%,

all unpublished), and eight of these were under 500 words in length (53%).

Eleven of the appeals were fully briefed,

but the briefs in one of these cases are under

seal, apparently because of trade secrets. In

34 of the appeals no counseled brief was

filed, and in five of the appeals a counseled

brief was filed only for one side.

There are citations to unpublished court

opinions in four of these cases. All of these

are citations to unrelated cases. All of these

citations are in briefs, not opinions.

Two of the unrelated unpublished opinions cited are by the court of appeals for the

Ninth Circuit, but citation to these opinions

may have just been to complete citations to

published opinions. The other unrelated unpublished opinions cited are district court

opinions, one by a Ninth Circuit district court

and three by other district courts.

C9–1. In an unsuccessful appeal of the

denial of asylum, Reyes-Mota v. Ashcroft (9th

Cir. 02–72782, filed 08/29/2002, judgment

09/19/2003), resolved by unpublished opinion at 76 Fed. Appx. 159, 2003 WL 22176700,

 of the Northern Mariana Islands, the District of Oregon,

or the Eastern District of Washington.

107. In 2002, 12,365 cases were filed in the court of

appeals for the Ninth Circuit.

the petitioner cited a depublished opinion by

the court of appeals for the Ninth Circuit. The

brief notes that the depublished opinion was

superseded by a published opinion and it

may be that only citation to the superseding

opinion was intended.

C9–2. In a pending case concerning federal sentencing guidelines, United States v.

Murillo (9th Cir. 02–50200, filed 04/24/2002,

judgment pending), the government’s appellee brief notes that a cited published opinion

by the court of appeals for the Ninth Circuit

was amended on denial of rehearing by a

published opinion concerning the sentence

and an unpublished opinion concerning the

conviction.

C9–3. In a successful reopening of an

immigration case because of ineffective assistance of counsel, Algarne v. Immigration and

Naturalization Service (9th Cir. 02–72045, filed

07/10/2002, judgment 05/20/2003), resolved

by unpublished opinion at Algarne v. Ashcroft,

65 Fed. Appx. 167, 2003 WL 21186544, the petitioner cited an unpublished order by the

district court for the Northern District of California to support a statement that his case

was “squarely controlled by” a published

opinion by the court of appeals for the Ninth

Circuit.

C9–4. The Bureau of Prisons cited three

unpublished opinions by district courts in

other circuits (one by the district court for the

District of Kansas and two by the district

court for the District of Minnesota) in an unsuccessful prisoner’s appeal, Bramwell v.

United States Bureau of Prisons (9th Cir. 02–

55516, filed 03/27/2002, judgment

10/27/2003), resolved by published opinion

at 348 F.3d 804, cert. denied, 125 S. Ct. 45

(2004). The unpublished opinions are listed in

the Bureau’s appellee brief in a footnote

headed “accord” and appended to a string

citation of 10 published opinions supporting

the Bureau’s main legal argument.
Citing Unpublished Opinions in Federal Appeals

235

Individual Case Analyses

United States v. Phelps (9th Cir. 02–10014, filed

01/10/2002, judgment 03/19/2002).

Appeal from: Northern District of California.

What happened: Pro se appeal dismissed as duplicative of another case, United States v. Phelps

(9th Cir. 02–10044, filed 01/24/2002, judgment

03/17/2003), which was dismissed as moot in

light of the companion cases.

Other related cases: Companion cases include

United States v. Phelps (9th Cir. 99-10042, filed

02/04/1999, judgment 03/21/2002) (judgment of

the district court vacated and case remanded) and

United States v. Phelps (9th Cir. 01–10119, filed

02/28/2001, judgment 03/21/2002) (judgment of

the district court vacated and case remanded).

Prior related cases include United States v.

Phelps (9th Cir. 92–10534, filed 09/10/1992, judgment 08/30/1994) (judgment of the district court

affirmed); Phelps v. United States District Court for

the Northern District of California (9th Cir. 94–

80219, filed 06/29/1994, judgment 07/21/1994)

(pro se petition for writ of mandamus denied);

Phelps v. United States (9th Cir. 01–80069, filed

04/25/2001, judgment 06/15/2001) (petition for a

writ of mandamus denied); and Phelps v. United

States (9th Cir. 01–80162, filed 07/17/2001, judgment 08/22/2001) (petition for writ of habeas

corpus dismissed because court of appeals does

not have jurisdiction to consider such a petition as

an original matter).

A subsequent related case is Phelps v. United

States (9th Cir. 02–15368, filed 02/28/2002, judgment 09/12/2002) (certificate of appealability denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Gómez-Rendón (9th Cir. 02–

10181, filed 04/09/2002, judgment 06/18/2003).

Appeal from: District of Arizona.

What happened: Unsuccessful appeal challenging a criminal sentence for an immigration violation as inconsistent with a plea agreement.

Appellant’s brief: The defendant’s 5,328-word

appellant brief cites 31 published opinions (five

by the U.S. Supreme Court, 25 by the Ninth Circuit, and one by a district in another circuit) and

one Ninth Circuit appeal raising similar legal issues.

Appellee’s brief: The government’s 2,513-word

appellee brief cites 12 published Ninth Circuit

opinions.

Opinion: (2) The court’s unpublished 428-word

memorandum, United States v. Gómez-Rendón, 68

Fed. Appx. 815, 2003 WL 21437639 (9th Cir. 2003)

(no headnotes), cites no opinions. According to

Westlaw (03/15/2005), the court’s memorandum

has not been cited elsewhere.

United States v. Acosta-Tapia (9th Cir. 02–10427,

filed 08/23/2002, judgment 07/10/2003).

Appeal from: District of Nevada.

What happened: Unsuccessful criminal appeal.

The defendant conditionally pleaded guilty to

possession of methamphetamine, reserving the

right to appeal denial of a motion to suppress results of a vehicle search where consent was impaired by a language barrier.

Related case: The codefendant also appealed in

a case briefed separately, but resolved by the

same opinion, United States v. Ortiz (9th Cir. 02–

10429, filed 08/23/2002, judgment 07/10/2003).

Appellant’s brief: The defendant’s 4,876-word

appellant brief cites 18 published opinions (seven

by the U.S. Supreme Court, seven by the Ninth

Circuit, one by another circuit, one by a Ninth

Circuit district, one by a district in another circuit,

and one by Nevada’s supreme court), the companion case, and two Spanish-English dictionaries.

Appellee’s brief: The government’s 6,461-word

appellee brief cites 24 published opinions (seven

by the U.S. Supreme Court, 11 by the Ninth Circuit, three by another circuit, one by a Ninth Circuit district, one by a district in another circuit,

and one by Nevada’s supreme court), the companion case, and two Spanish–English dictionaries.

Appellant’s reply brief: The defendant’s 1,516-

word reply brief cites three published opinions

(two by the U.S. Supreme Court and one by the

Ninth Circuit).

Opinion: (2) The court’s unpublished 842-word

memorandum, United States v. Acosta-Tapia, 69

Fed. Appx. 885, 2003 WL 21659424 (9th Cir. 2003)

(two headnotes), cites five published opinions

(one by the U.S. Supreme Court, three by the

Ninth Circuit, and one by another circuit). “Because the relevant facts are known to the parties,

we discuss them here briefly and only as necessary.” (Page 2.) According to Westlaw

(03/15/2005), the court’s opinion has not been

cited elsewhere.

United States v. Ramon Gauna-Mendoza (9th

Cir. 02–10444, filed 08/30/2002, judgment

10/11/2002).

Appeal from: District of Arizona.

What happened: Pro se criminal appeal dismissed as premature.
Citing Unpublished Opinions in Federal Appeals

236

Related case: United States v. Gauna-Mendoza

(9th Cir. 02–10300, filed 6/17/2002, judgment

08/19/2002) (pro se criminal appeal dismissed as

premature).

Opinion: (1) The court’s docket judgment cites

no opinions.

Tripati v. Stewart (9th Cir. 02–15575, filed

03/26/2002, judgment 05/21/2002).

Appeal from: District of Arizona.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Krajca v. Southland Corp. (9th Cir. 02–16102,

filed 06/04/2002, judgment 08/14/2002).

Appeal from: District of Nevada.

What happened: Civil appeal dismissed for failure to prosecute.

Related case: Krajca v. Southland Corp. (9th Cir.

01–16104, filed 06/06/2001, judgment

08/24/2002) (unsuccessful civil appeal).

Opinion: (1) The court’s docket judgment cites

no opinions.

Benson v. Oregon (9th Cir. 02–16197, filed

06/18/2002, judgment 07/09/2002).

Appeal from: Eastern District of California.

What happened: Plaintiff’s civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Critton v. Hall (9th Cir. 02–16215, filed

06/19/2002, judgment 07/28/2003).

Appeal from: Eastern District of California.

What happened: Habeas corpus relief summarily reversed in light of new Supreme Court case.

Opinion: (1) The court’s 49-word docketed order cites one U.S. Supreme Court opinion.

Cendejas v. Danzig (9th Cir. 02–16875, filed

09/30/2002, judgment 07/24/2003).

Appeal from: Northern District of California.

What happened: Unsuccessful pro se plaintiff’s

appeal in an employment discrimination suit

against the Navy.

Appellee’s brief: The government’s 5,086-word

appellee brief cites 27 published opinions (six by

the U.S. Supreme Court, 17 by the Ninth Circuit,

three by other circuits, and one by a Ninth Circuit

district).

Opinion: (2) The court’s unpublished 450-word

memorandum, Cendejas v. Johnson, 71 Fed. Appx.

639, 2003 WL 2175172 (9th Cir. 2003) (no headnotes), cites seven published Ninth Circuit opinions. According to Westlaw (03/15/2005), the

court’s memorandum has not been cited elsewhere.

Romaine v. Woods (9th Cir. 02–17128, filed

10/30/2002, judgment 02/25/2003).

Appeal from: District of Arizona.

What happened: Certificate of appealability denied.

Related case: Romaine v. Woods (9th Cir. 98–

17356, filed 12/18/1998, judgment 12/06/2001)

(successful habeas corpus appeal by petitioner).

Opinion: (1) The court’s docket judgment cites

no opinions.

Hollis v. Roe (9th Cir. 02–17503, filed 12/27/2002,

judgment 04/30/2003).

Appeal from: Northern District of California.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Aguilar-Miranda (9th Cir. 02–

30355, filed 11/05/2002, judgment 10/31/2003).

Appeal from: District of Idaho.

What happened: Criminal appeal voluntarily

dismissed after a stipulated limited remand to

correct the judgment of conviction.

Opinion: (1) The court’s docket judgment cites

no opinions.

All Alaskan Seafoods, Inc. v. Tyco Electronics

Corp. (9th Cir. 02–35214, filed 02/22/2002,

judgment 12/17/2003).

Appeal from: Western District of Washington.

What happened: The court of appeals affirmed

the district court’s judgment awarding $70,000 in

costs to the defendant in a product liability suit

concerning a ship fire. The briefs are under seal.

Related cases: A prior appeal from the same district court case was All Alaskan Seafoods, Inc. v. Ray

Chemical Corp. (9th Cir. 98–35540, filed

06/03/1998, judgment 12/07/1999) (affirming

judgment on a defense jury verdict). The selected

case was consolidated with All Alaskan Seafoods,

Inc. v. Tyco Electronics Corp. (9th Cir. 01–36106,

filed 12/03/2001, judgment 12/17/2003) (unsuccessful civil appeal).

Opinion: (2) The court’s unpublished 1,495-

word memorandum, All Alaskan Seafoods, Inc. v.

Tyco Electronics Corp., 83 Fed. Appx. 948, 2003 WL

22977439 (9th Cir. 2003) (five headnotes), cites

nine published Ninth Circuit opinions, including

an earlier appeal in this case. According to Westlaw (03/15/2005), the court’s opinion has not

been cited elsewhere.
Citing Unpublished Opinions in Federal Appeals

237

Hatfield v. City of Bremerton (9th Cir. 02–35434,

filed 05/03/2002, judgment 07/09/2003).

Appeal from: Western District of Washington.

What happened: Unsuccessful appeal of summary judgment in a suit by a high-ranking police

officer and his wife for injuries related to a new

mayor’s reorganization of the police department.

The court affirmed on grounds different from the

district court’s.

Appellant’s brief: The police captain’s 10,908-

word appellant brief cites 43 published opinions

(five by the U.S. Supreme Court, 30 by the Ninth

Circuit, three by other circuits, three by Washington’s supreme court, and two by Washington’s

court of appeals).

Appellee’s brief: The city and mayor’s 13,270-

word appellee brief cites 50 published opinions

(16 by the U.S. Supreme Court, 12 by the Ninth

Circuit, 10 by other circuits, four by districts outside the Ninth Circuit, four by Washington’s supreme court, three by Washington’s court of appeals, and one by Idaho’s supreme court) and the

Restatement (Second) of Torts.

Appellant’s reply brief: The police captain’s

1,851-word reply brief cites four published opinions (one by the U.S. Supreme Court, two by the

Ninth Circuit, and one by another circuit).

Opinion: (2) The court’s 548-word unpublished

memorandum, Hatfield v. City of Bremerton, 73 Fed.

Appx. 198, 2003 WL 21580527 (9th Cir. 2003)

(three headnotes), cites 10 published opinions

(four by the U.S. Supreme Court and six by the

Ninth Circuit). According to Westlaw

(07/07/2004), the court’s opinion has not been

cited elsewhere.

Wilderness Society v. Rey (9th Cir. 02–35678,

filed 07/22/2002, judgment 01/06/2003).

Appeal from: District of Montana.

What happened: Appeal voluntarily dismissed

after mediation.

Related case: Consolidated with Friends of the

Bitterroot v. Rey (9th Cir. 02–35680, filed

07/22/2002, judgment 01/06/2003) (also dismissed after mediation).

Opinion: (1) The court’s docket judgment cites

no opinions.

Nickerson v. Alaska (9th Cir. 02–35719, filed

08/01/2002, judgment 02/14/2003).

Appeal from: District of Alaska.

What happened: Pro se civil appeal dismissed

for lack of jurisdiction.

Related cases: Nickerson v. Estate of Wiro (9th Cir.

00–16628, filed 08/31/2000, judgment

09/20/2001) (unsuccessful civil appeal), Nickerson

v. Bering Strait School District (9th Cir. 02–35829,

filed 09/11/2002, judgment 02/25/2003) (civil

appeal dismissed for lack of jurisdiction).

Opinion: (1) The court’s docket judgment cites

no opinions.

Lema v. United States Immigration and

Naturalization Service (9th Cir. 02–35901, filed

09/20/2002, judgment 09/02/2003).

Appeal from: Western District of Washington.

What happened: Unsuccessful immigration appeal from a published denial of a habeas corpus

petition, Lema v. United States Immigration and

Naturalization Service, 214 F. Supp. 2d 1116 (W.D.

Wash. 2002). After a lawful permanent resident

was convicted of delivering cocaine, the INS attempted to deport him to Ethiopia, but Ethiopia

would not issue the necessary travel documents,

so he petitioned for release from custody. The district court denied the petition.

Related case: This case was argued before the

same panel as Martinez-Vazquez v. Immigration and

Naturalization Service (9th Cir. 03–350261, filed

01/15/2003, judgment 10/01/2003), “because

they may raise similar issues regarding detention

by the INS.” The court of appeals held that the

petitioner was not entitled to release because he

had not cooperated fully in obtaining travel

documents from Ethiopia.

Appellant’s brief: The petitioner’s 4,159-word

appellant brief cites six published opinions (two

by the U.S. Supreme Court and four by the Ninth

Circuit).

Appellee’s brief: The government’s 6,146-word

appellee brief cites 21 published opinions (eight

by the U.S. Supreme Court, seven by the Ninth

Circuit, two by other circuits, the published opinion by the Western District of Washington in this

case, and three by districts in other circuits).

Appellant’s reply brief: The petitioner’s 3,573-

word reply brief cites 12 published opinions (five

by the U.S. Supreme Court, six by the Ninth Circuit, and one by the Western District of Washington).

Opinion: (3) The court’s published 2,111-word

signed opinion, Lema v. U.S. Immigration and Naturalization Service, 341 F.3d 853 (9th Cir. 2003)

(seven headnotes), cites eight published opinions

(two by the U.S. Supreme Court, four by the

Ninth Circuit, one by another circuit, and the published opinion by the Western District of Washington in this case) and one treatise. According to

Westlaw (03/15/2005), the court’s opinion has

been cited in one published Ninth Circuit opinion,

one unpublished opinion by another circuit, two

unpublished opinions by district courts in other
Citing Unpublished Opinions in Federal Appeals

238

circuits (one published and one unpublished),

three secondary sources, two appellate briefs in

two Ninth Circuit cases, and two trial court briefs

in one case in a district in another circuit.

Wade v. CMS Medical Services (9th Cir. 02–36088,

filed 12/05/2002, judgment 01/15/2004).

Appeal from: District of Idaho.

What happened: Unsuccessful pro se prisoner

appeal in a case claiming deliberate indifference

to medical needs.

Appellee’s brief: The medical services providers’

7,864-word appellee brief cites 30 published opinions (seven by the U.S. Supreme Court, 18 by the

Ninth Circuit, four by other circuits, and one by

Idaho’s supreme court).

Opinion: (2) The court’s unpublished 307-word

memorandum, Wade v. CMS Medical Services, Inc.,

86 Fed. Appx. 291, 2004 WL 68719 (9th Cir. 2004)

(two headnotes), cites four published Ninth Circuit opinions. According to Westlaw

(03/15/2005), the court’s memorandum has been

cited in one secondary source.

United States v. Murillo (9th Cir. 02–50200, filed

04/24/2002, judgment pending).

Appeal from: Southern District of California.

What happened: This sentencing-guideline case

concerning a cocaine conviction is still open. The

court has allowed supplemental briefing on

Blakely v. Washington.

Related cases: United States v. Reina (9th Cir. 02–

50054, filed 02/01/2002, judgment 09/16/2003)

(unsuccessful criminal appeal), United States v.

Perlaza (9th Cir. 02–50084, filed 02/20/2002,

judgment pending), United States v. Palacios (9th

Cir. 02–50089, filed 02/22/2002, judgment pending), United States v. Marquez (9th Cir. 02–50093,

filed 02/25/2002, judgment pending), United

States v. Solis-Barnaza (9th Cir. 02–50102, filed

02/27/2002, judgment pending), United States v.

Rengifo-Audiver (9th Cir. 02–50108, filed

03/01/2002, judgment pending), United States v.

Valencia-Sánchez (9th Cir. 02–50133, filed

03/13/2002, judgment pending), United States v.

Castro-Carvajal (9th Cir. 02–50136, filed

03/15/2002, judgment pending), United States v.

Aborno (9th Cir. 02–50188, filed 04/09/2002,

judgment pending), United States v. Lopez (9th Cir.

02–50199, filed 04/24/2002, judgment pending),

United States v. Carrasco (9th Cir. 02-50207, filed

04/30/2002, judgment pending), Ramírez v. Castro

(9th Cir. 02–56436, filed 08/26/2002, judgment

03/19/2003) (certificate of appealability denied).

Appellant’s brief: The defendant’s 13,898-word

appellant brief cites 86 published opinions (45 by

the U.S. Supreme Court, 40 by the Ninth Circuit,

and one by another circuit), two treatises, and one

newspaper article.

Appellee’s brief: The government’s 32,432-word

appellee brief (filed in 10 of the consolidated appeals) cites 134 published opinions (26 by the U.S.

Supreme Court, 86 by the Ninth Circuit, and 22 by

other circuits), one unpublished Ninth Circuit

opinion, two treatises, Black’s Law Dictionary, and

the Restatement (Second) of Foreign Relations Law of

the United States.

The brief cites a published Ninth Circuit opinion to support the statement, “Courts of appeal

are required to give due deference to the sentencing court’s application of the guidelines to the

facts.” (Page 110.) The citation notes that the cited

opinion was amended on denial of rehearing by

another published Ninth Circuit opinion, which

was supplemented by an unpublished Ninth Circuit opinion. The unpublished opinion on rehearing affirmed a conviction, and the published opinion on rehearing affirmed the sentence.

Appellant’s reply brief: The defendant’s 6,803-

word reply brief cites 60 published opinions (28

by the U.S. Supreme Court, 27 by the Ninth Circuit, four by other circuits, and one by a district in

another circuit).

Appellant’s supplemental brief: The defendant’s

2,252-word supplemental brief cites six published

opinions (three by the U.S. Supreme Court and

three by the Ninth Circuit) and one brief filed by

the government in Blakely v. Washington.

Appellee’s supplemental brief: The government’s

4,019-word supplemental brief cites 13 published

opinions (three by the U.S. Supreme Court, six by

the Ninth Circuit, and four by other circuits).

Opinion: (0) The case is still open.

Hereford Corp. v. Legion for the Survival of

Freedom, Inc. (9th Cir. 02–55072, filed 01/14/2002,

judgment 06/24/2002).

Appeal from: Southern District of California.

What happened: Plaintiffs’ civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Davis v. Hamlett (9th Cir. 02–55117, filed

01/17/2002, judgment 08/20/2002).

Appeal from: Central District of California.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.
Citing Unpublished Opinions in Federal Appeals

239

Belcher v. Taylor (9th Cir. 02–55385, filed

03/07/2002, judgment 08/16/2002).

Appeal from: Central District of California.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Pedraza v. Pliler (9th Cir. 02–55454, filed

03/19/2002, judgment 11/27/2002).

Appeal from: Central District of California.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Bramwell v. United States Bureau of Prisons (9th

Cir. 02–55516, filed 03/27/2002, judgment

10/27/2003).

Appeal from: Central District of California.

What happened: Unsuccessful appeal of the dismissal of a prisoner’s suit for $290 in damages for

sunglasses inadvertently destroyed by prison

staff. The complaint was dismissed on the ground

that under the Federal Tort Claims Act, sovereign

immunity is not waived for the detention of goods

by federal law enforcement officers. The prisoner

appeared initially pro se, but after the parties filed

their briefs the court determined that appointment of counsel would benefit the court’s review.

Appellee’s first brief: The Bureau of Prison’s

3,278-word initial appellee brief cites 35 published

opinions (seven by the U.S. Supreme Court, 19 by

the Ninth Circuit, six by other circuits, two by the

Central District of California, and one by a district

in another circuit).

Appellant’s supplemental brief: The 2,516-word

appellant brief submitted by the prisoner’s pro

bono counsel cites 14 published opinions (four by

the U.S. Supreme Court, two by the Ninth Circuit,

seven by other circuits, and one by a district in

another circuit) and one law review article.

Appellee’s supplemental brief: The Bureau of

Prison’s 4,495-word supplemental appellee brief

cites 36 published opinions (four by the U.S. Supreme Court, 18 by the Ninth Circuit, 11 by other

circuits, one by the Central District of California,

and two by districts in other circuits), three unpublished opinions by districts in other circuits,

and Black’s Law Dictionary.

The unpublished district court opinions are

listed in a footnote headed “accord,” appended to

a string citation of 10 published opinions (nine

appellate and one district court) supporting the

bureau’s main legal argument. (Page 10, note 3.)

Appellant’s supplemental reply brief: The appellant’s 1,607-word reply brief cites 14 published

opinions (three by the U.S. Supreme Court, five

by the Ninth Circuit, and six by other circuits).

Opinion: (3) The court’s published 1,632-word

signed opinion, Bramwell v. United States Bureau of

Prisons, 348 F.3d 804 (9th Cir. 2003)

108 (seven headnotes), cites 22 published opinions (four by the

U.S. Supreme Court, seven by the Ninth Circuit,

and 11 by other circuits). According to Westlaw

(03/15/2005), the court’s opinion has been cited

in four Ninth Circuit opinions (one published and

three unpublished), one unpublished opinion by a

district in another circuit, one unpublished opinion by Massachusetts’s superior court, three secondary sources, four appellate briefs in two Ninth

Circuit cases, one trial court brief in a district in

another circuit, and two briefs concerning the

prisoner’s petition to the U.S. Supreme Court for

certiorari.

Davis v. Roe (9th Cir. 02–55530, filed 04/01/2002,

judgment 06/13/2002).

Appeal from: Central District of California.

What happened: Certificate of appealability denied because petitioner failed to file a timely notice of appeal.

Opinion: (1) The court’s docket judgment cites

no opinions.

AT&T Wireless Services of California, LLC v.

City of San Diego (9th Cir. 02–55616, filed

04/15/2002, judgment 07/24/2002).

Appeal from: Southern District of California.

What happened: Plaintiffs’ civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Uplinger v. Barron (9th Cir. 02–55746, filed

05/07/2002, judgment 06/14/2002).

Appeal from: Central District of California.

What happened: Pro se prisoner appeal dismissed as premature.

Related cases: The prisoner’s three other premature appeals were also dismissed: Uplinger v. Barron (9th Cir. 02–55743, filed 05/07/2002, judgment

06/14/2002), Uplinger v. Barron (9th Cir. 02–55744,

filed 05/07/2002, judgment 06/14/2002), and

Uplinger v. Barron (9th Cir. 02–55745, filed

05/07/2002, judgment 06/14/2002).

Opinion: (1) The court’s docket judgment cites

no opinions.

 108. Cert. denied, 125 S. Ct. 45 (2004).
Citing Unpublished Opinions in Federal Appeals

240

Gibbs v. State Bar of California (9th Cir. 02–

55857, filed 05/24/2002, judgment 06/14/2002).

Appeal from: Central District of California.

What happened: Civil appeal dismissed as late.

Related cases: Gibbs v. United States District

Court for the Northern District of California (9th Cir.

00–71292, filed 10/16/2000, judgment

12/11/2000) (writ of mandamus denied), Gibbs v.

United States District Court for the Northern District

of California (9th Cir. 01–71754, filed 11/13/2001,

judgment 12/26/2001) (writ of mandamus denied), Gibbs v. Leaf (9th Cir. 02–15034, filed

01/09/2002, judgment 05/13/2002) (appeal dismissed for failure to pay docketing fees), In re

Gibbs (9th Cir. 02–70166, filed 01/31/2002, judgment 03/14/2002) (writ of mandamus denied), In

re Gibbs (9th Cir. 02–70351, filed 03/01/2002,

judgment 04/11/2002) (writ of mandamus denied), In re Gibbs (9th Cir. 02–70452, filed

03/15/2002, judgment 04/11/2002) (writ of mandamus denied), Gibbs v. United States District

Court for the Northern District of California (9th Cir.

02–70987, filed 05/02/2002, judgment

05/16/2002) (writ of mandamus denied), Gibbs v.

United States District Court for the Eastern District of

California (9th Cir. 02–71397, filed 05/23/2002,

judgment 08/16/2002) (petitioner’s writ of mandamus denied), Gibbs v. Hubbard (9th Cir. 02–

16094, filed 06/03/2002, judgment 02/25/2003)

(certificate of appealability denied), Gibbs v. State

Bar of California (9th Cir. 02–55939, filed

06/04/2002, judgment 08/30/2002) (appeal dismissed for failure to prosecute), Gibbs v. Veale (9th

Cir. 02–16138, filed 06/07/2002, judgment

07/31/2002) (appeal dismissed as late).

Opinion: (1) The court’s docket judgment cites

no opinions.

Biggs v. Cox (9th Cir. 02–56440, filed 08/27/2002,

judgment 12/12/2002).

Appeal from: Southern District of California.

What happened: Pro se prisoner appeal voluntarily dismissed.

Related case: Biggs v. Duncan (9th Cir. 01–15917,

filed 05/10/2001, judgment 08/12/2003) (unsuccessful pro se prisoner appeal).

Opinion: (1) The court’s docket judgment cites

no opinions.

Santos v. Cambra (9th Cir. 02–56452, filed

08/27/2002, judgment 10/16/2002).

Appeal from: Southern District of California.

What happened: Pro se habeas corpus appeal

dismissed as late.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. James (9th Cir. 02–56456, filed

08/28/2002, judgment 02/25/2003).

Appeal from: Southern District of California.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Battle v. Merkle (9th Cir. 02–56569, filed

09/18/2002, judgment 03/18/2003).

Appeal from: Central District of California.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Gonzales-Lemus v. Mitchell (9th Cir. 02–57071,

filed 12/13/2002, judgment 04/22/2003).

Appeal from: Central District of California.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Barlow v. Adams (9th Cir. 02–70167, filed

01/31/2002, judgment 03/15/2002).

Appeal from: Central District of California.

What happened: Motion to file a successive habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Balendran v. Immigration and Naturalization

Service (9th Cir. 02–70521, filed 03/25/2002,

judgment 12/18/2002).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

for failure to prosecute.

Opinion: (1) The court’s docket judgment cites

no opinions.

Martínez-Argueta v. Immigration and

Naturalization Service (9th Cir. 02–70580, filed

03/29/2002, judgment 03/14/2003).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful pro se immigration appeal in an action seeking asylum.

Appellee’s brief: The government’s 11,586-word

replacement respondent brief cites 39 published

court opinions (six by the U.S. Supreme Court, 31

by the Ninth Circuit, and two by another circuit)

and one published decision of the Board of Immigration Appeals.

Opinion: (2) The court’s 324-word unpublished

memorandum, Martinez-Argueta v. Ashcroft, 58

Fed. Appx. 373, 2003 WL 119362 (9th Cir. 2003)

(one headnote), cites six published Ninth Circuit
Citing Unpublished Opinions in Federal Appeals

241

opinions. According to Westlaw (03/15/2005), the

court’s memorandum has been cited in one secondary source.

Garcia v. Ashcroft (9th Cir. 02–70889, filed

04/25/2002, judgment 03/24/2004).

Appeal from: Board of Immigration Appeals.

What happened: Partially successful pro se immigration appeal. The court found error in the

immigration judge’s findings that the petitioners

were not in the United States continuously and

were not of good moral character.

Respondent’s brief: The government’s 8,624-

word respondent brief cites 30 published opinions

(12 by the U.S. Supreme Court, 17 by the Ninth

Circuit, and one by another circuit).

Opinion: (2) The court’s unpublished 414-word

memorandum, Garcia v. Ashcroft, 94 Fed. Appx.

498, 2004 WL 605167 (9th Cir. 2004) (two headnotes), cites four published Ninth Circuit opinions. According to Westlaw (03/15/2005), the

court’s memorandum has been cited in one secondary source.

Ram v. Immigration and Naturalization Service

(9th Cir. 02–70899, filed 04/25/2002, judgment

12/11/2002).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

for lack of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

Juarez-Morales v. Immigration and

Naturalization Service (9th Cir. 02–71015, filed

05/03/2002, judgment 02/18/2003).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal remanded

to the Board of Immigration Appeals on the motion of the Immigration and Naturalization Service.

Opinion: (1) The court’s docketed order cites no

opinions.

González v. Immigration and Naturalization

Service (9th Cir. 02–71776, filed 06/20/2002,

judgment 07/30/2003).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful pro se immigration appeal, because the petitioner failed to show

a clear probability of persecution in Guatemala.

Respondent’s brief: The government’s 4,742-

word respondent brief cites 35 published court

opinions (five by the U.S. Supreme Court, 29 by

the Ninth Circuit, and one by another circuit) and

one published decision by the Board of Immigration Appeals.

Opinion: (2) The court’s unpublished 1,107-

word memorandum, Gonzalez v. Immigration and

Naturalization Service, 70 Fed. Appx. 968, 2003 WL

21774125 (9th Cir. 2003) (one headnote), cites 12

published opinions (two by the U.S. Supreme

Court and 10 by the Ninth Circuit). According to

Westlaw (03/15/2005), the court’s memorandum

has not been cited elsewhere.

In re Bell (9th Cir. 02–71796, filed 06/21/2002,

judgment 09/13/2002).

Appeal from: Eastern District of California.

What happened: Writ of mandamus denied.

Prior Cases: Bell v. Hill (9th Cir. 99–55286, filed

03/04/1999, judgment 04/19/1999) (certificate of

appealability denied), In re Bell (9th Cir. 01–70510,

filed 03/27/2001, judgment 05/23/2001) (writ of

mandamus denied), In re Bell (9th Cir. 01–71627,

filed 10/15/2001, judgment 11/09/2001) (writ of

mandamus denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

González v. Ashcroft (9th Cir. 02–71866, filed

06/27/2002, judgment 09/13/2002).

Appeal from: Board of Immigration Appeals.

What happened: Respondent’s motion to dismiss immigration appeal for lack of jurisdiction

granted.

Opinion: (1) The court’s docket judgment cites

no opinions.

Algarne v. Immigration and Naturalization

Service (9th Cir. 02–72045, filed 07/10/2002,

judgment 05/20/2003).

Appeal from: Board of Immigration Appeals.

What happened: Over a dissent, the court reopened an immigration case because prior counsel was ineffective.

Related case: Algarne v. Immigration and Naturalization Service (9th Cir. 96-70465, filed

06/07/1996, judgment 07/18/1997) (immigration

appeal dismissed for failure to file a brief).

Petitioner’s brief: The petitioner’s 8,438-word

brief cites 36 published court opinions (three by

the U.S. Supreme Court, 30 by the Ninth Circuit,

two by other circuits, one by a Ninth Circuit district), two published decisions by the Board of

Immigration Appeals, and one unpublished order

by a Ninth Circuit district.

The brief cites an unpublished order by the

Northern District of California to support the

statement that this case is “squarely controlled

by” a published Ninth Circuit opinion. (Page 25.)

Respondent’s brief: The government’s 5,402-

word respondent brief cites 20 published court

opinions (four by the U.S. Supreme Court, 15 by
Citing Unpublished Opinions in Federal Appeals

242

the Ninth Circuit, and one by another circuit), one

published decision of the Board of Immigration

Appeals, and one treatise.

Petitioner’s reply brief: The petitioner’s 3,408-

word reply brief cites 17 published opinions

(three by the U.S. Supreme Court and 14 by the

Ninth Circuit).

Opinion: (2) The court’s unpublished 338-word

memorandum and dissent, Algarne v. Ashcroft, 65

Fed. Appx. 167, 2003 WL 21186544 (9th Cir. 2003)

(one headnote), cites three published Ninth Circuit opinions. According to Westlaw

(03/15/2005), the court’s memorandum has not

been cited elsewhere.

Reyes-Mota v. Ashcroft (9th Cir. 02–72782, filed

08/29/2002, judgment 09/19/2003).

Appeal from: Board of Immigration Appeals.

What happened: The court affirmed an immigration judge’s denial of asylum because the petitioner had failed to establish that there was more

than a generalized possibility of persecution in

Guatemala.

Petitioner’s brief: The petitioner’s 5,178-word

brief cites 13 published court opinions (four by

the U.S. Supreme Court and nine by the Ninth

Circuit), one depublished Ninth Circuit opinion,

and five published decisions by the Board of Immigration Appeals.

The brief cites a depublished Ninth Circuit

opinion, noting that it was amended by a superseding published panel opinion, and the brief also

cites the superseding opinion separately. It may

be that only citation to the superseding opinion is

intended.

Respondent’s brief: The government’s 4,677-

word respondent brief cites 30 published court

opinions (seven by the U.S. Supreme Court, 21 by

the Ninth Circuit, and two by other circuits) and

six published decisions by the Board of Immigration Appeals.

Opinion: (2) The court’s unpublished 123-word

memorandum, Reyes-Mota v. Ashcroft, 76 Fed.

Appx. 159, 2003 WL 22176700 (9th Cir. 2003) (no

headnotes), cites two published Ninth Circuit

opinions. According to Westlaw (03/16/2005), the

court’s memorandum has not been cited elsewhere.

Gomes v. Hildreth (9th Cir. 02–73052, filed

09/23/2002, judgment 12/16/2002).

Appeal from: District of Nevada.

What happened: Motion to file a successive habeas corpus petition denied.

Prior case: Gomes v. Hatcher (9th Cir. 00–17395,

filed 12/12/2000, judgment 06/18/2001) (certificate of appealability denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

Hsu v. Ashcroft (9th Cir. 02–73070, filed

09/23/2002, judgment 09/11/2003).

Appeal from: Board of Immigration Appeals.

What happened: Respondent’s motion to dismiss petition for lack of jurisdiction granted, with

one judge dissenting.

Opinion: (1) The court’s docket judgment cites

no opinions.

Avila-Corona v. Ashcroft (9th Cir. 02–73108, filed

09/25/2002, judgment 02/05/2003).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Ponce v. Ashcroft (9th Cir. 02–73157, filed

09/27/2002, judgment 06/23/2004).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal. The court held that it lacked jurisdiction to

review the immigration judge’s findings of no

hardship.

Petitioner’s brief: The petitioner’s 5,974-word

brief cites 15 published court opinions (three by

the U.S. Supreme Court, 11 by the Ninth Circuit,

and one by another circuit), six published decisions by the Board of Immigration Appeals, and

three pending Ninth Circuit appeals raising legal

issues similar to issues in the selected case.

Respondent’s brief: The government’s 5,461-

word respondent brief cites 30 published court

opinions (seven by the U.S. Supreme Court, 10 by

the Ninth Circuit, and 13 by other circuits) and

two published decisions by the Board of Immigration Appeals.

Opinion: (2) The court’s unpublished 313-word

memorandum, Ponce v. Ashcroft, 101 Fed. Appx.

734, 2004 WL 1404718 (9th Cir. 2004) (no headnotes), cites five published Ninth Circuit opinions.

According to Westlaw (03/16/2005), the court’s

memorandum has not been cited elsewhere.

Avendano-Ramirez v. Ashcroft (9th Cir. 02–73395,

filed 10/17/2002, judgment 04/23/2004).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal for cancellation of removal, because a person

removed within five years is defined by statute as

not of good moral character.
Citing Unpublished Opinions in Federal Appeals

243

Petitioner’s brief: The petitioner’s 8,764-word

brief cites 18 published court opinions (five by the

U.S. Supreme Court, seven by the Ninth Circuit,

five by other circuits, and one by a district in another circuit) and three published decisions by the

Board of Immigration Appeals.

Respondent’s brief: The government’s 3,006-

word respondent brief cites eight published court

opinions (two by the U.S. Supreme Court and six

by the Ninth Circuit).

Petitioner’s reply brief: The petitioner’s 1,547-

word reply brief cites two published court opinions (one by the U.S. Supreme Court and one by

the Ninth Circuit) and two published decisions by

the Board of Immigration Appeals.

Opinion: (3) The court’s published 3,108-word

signed opinion, Avendano-Ramirez v. Ashcroft, 365

F.3d 813 (9th Cir. 2004) (nine headnotes), cites 28

published opinions (five by the U.S. Supreme

Court, 19 by the Ninth Circuit, three by other circuits, and one by Ohio’s court of appeals). According to Westlaw (03/16/2005), the court’s

opinion has been cited in five Ninth Circuit opinions (four published and one unpublished), one

published opinion by another circuit, one published opinion by a Ninth Circuit district, and 20

appellate briefs in 19 Ninth Circuit cases.

Escobar-Avila v. Ashcroft (9th Cir. 02–73572,

filed 10/25/2002, judgment 12/23/2002).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

as untimely.

Related cases: Also dismissed were consolidated

cases apparently involving other family members,

Escobar-Avila v. Ashcroft (9th Cir. 02–73557, filed

10/25/2002, judgment 12/23/2002), Escobar-Avila

v. Ashcroft (9th Cir. 02–73563, filed 10/25/2002,

judgment 12/23/2002), Escobar-Avila v. Ashcroft

(9th Cir. 02–73568, filed 10/25/2002, judgment

12/23/2002), and Escobar-Avila v. Ashcroft (9th Cir.

02–73570, filed 10/25/2002, judgment

12/23/2002).

Opinion: (1) The court’s docket judgment cites

no opinions.

10. Tenth Circuit109

The Tenth Circuit disfavors citation to unpublished opinions in unrelated cases, but

permits it if they are persuasive and there is

no published opinion on point.

110

Of the 50 cases randomly selected, 46 are

appeals from district courts (11 from the District of Utah, 10 from the District of Colorado,

eight from the District of New Mexico, six

from the Western District of Oklahoma, five

from the District of Kansas, four from the

Northern District of Oklahoma, and two from

the District of Wyoming),

111 three are appeals

from the Board of Immigration Appeals, and

one is an appeal from the Office of Workers’

Compensation Programs.

112

The publication rate in this sample will

be from 18% to 20% once all the cases are resolved. Nine of the cases were resolved by

published opinions (including one with two

concurrences; one with a dissent; and a per

curiam en banc opinion with two opinions

 

109. Docket sheets and some opinions are on

PACER. (Of the 25 cases in this sample resolved by

opinions, the opinions are on PACER for three cases.)

Opinions are on the court’s intranet site and on Westlaw. A few briefs are on Westlaw. (Of the 17 cases in

this sample that were resolved by opinions and in

which counseled briefs were filed, all briefs are on

Westlaw for two cases and some briefs are on Westlaw

for two cases.)

110. 10th Cir. L.R. 36.3(B) (“Citation of an unpublished decision is disfavored. But an unpublished decision may be cited if: (1) it has persuasive value with

respect to a material issue that has not been addressed

in a published opinion; and (2) it would assist the court

in its disposition.”).

Until 1986, the court permitted citations to its unpublished opinions. The court adopted a rule prohibiting citation to its unpublished opinions in unrelated

cases November 18, 1986. On November 29, 1993, the

court relaxed its rules to permit citation to persuasive

unpublished opinions if there is no published opinion

on point.

111. This sample did not include any appeals from

the Eastern District of Oklahoma.

112. In 2002, 2,656 cases were filed in the court of

appeals for the Tenth Circuit.
Citing Unpublished Opinions in Federal Appeals

244

concurring in part and dissenting in part, one

opinion concurring, and one opinion dissenting), 16 were resolved by unpublished orders

published in the Federal Appendix (13 with the

designation “order and judgment”; one with

a dissent; and three with the designation “order”), 24 were resolved by docket judgments,

and one case has not yet been resolved.

Published opinions averaged 9,535

words in length, ranging from 2,981 to 33,814.

Unpublished orders averaged 1,428 words in

length, ranging from 327 to 6,003. Ten opinions were under 1,000 words in length (40%,

all unpublished), and five of these were under 500 words in length (20%).

Seventeen of the appeals were fully

briefed. In 30 of the appeals, no counseled

brief was filed, and in three of the appeals a

counseled brief was filed only for one side.

There are citations to unpublished court

opinions in 12 of the cases. In three cases the

citations are only to opinions in related cases;

in nine cases there are citations to unpublished opinions in unrelated cases. In four

cases the court cited unrelated unpublished

opinions; in five other cases only the parties

cited unrelated unpublished opinions.

Of the unrelated unpublished opinions

cited by the court in these cases, three are by

the court of appeals for the Tenth Circuit and

three are by courts of appeals for other circuits. Of the unrelated unpublished opinions

cited only by the parties in these cases, eight

are by the court of appeals for the Tenth Circuit, three are by courts of appeals for other

circuits, six are by district courts for Tenth

Circuit districts, and 20 are by other district

courts.

C10–1. In a published opinion affirming

a drug sentence, United States v. Cruz-Alcala,

338 F.3d 1194 (10th Cir. 2003), resolving 02–

2290 (filed 10/22/2002, judgment

08/11/2003), the court cited one of its own

unpublished opinions and an unpublished

opinion by the court of appeals for the Ninth

Circuit.

In a discussion of whether the defendant

waived his right to counsel in prior misdemeanor prosecutions used to enhance his

sentence, the opinion states the following:

“There is, however, no precedential authority

from this court regarding whether an involuntary or unknowing waiver of counsel

causes a ‘complete denial of counsel.’” The

opinion then cites an unpublished Tenth Circuit opinion with the signal “but cf.”

To support the court’s determination of

which subsection of the sentencing guidelines

controls enhancement for a prior sentence to

probation and time served, the opinion cites

four opinions by other circuits, including an

unpublished opinion by the court of appeals

for the Ninth Circuit.

C10–2. In a published opinion determining that an immigration judge should have

afforded the petitioner’s claims of Chinese

ethnicity more credibility and evaluated the

persecution of ethnic Chinese in Indonesia,

Wiransane v. Ashcroft, 366 F.3d 889 (10th Cir.

2004), resolving 02–9555 (filed 08/15/2002,

judgment 04/27/2004), the court cited unpublished opinions by the courts of appeals

for the Tenth and Third Circuits to support a

statement that an immigrant’s claim for asylum or restriction on removal depends on

current conditions: “Subsequent events in

Indonesia may well undercut Petitioner’s

claims.”

C10–3. In an unpublished opinion reversing the rescission of Social Security disability benefits, Jackson v. Barnhart, 60 Fed.

Appx. 255, 2003 WL 1473554 (10th Cir. 2003),

resolving 02–5065 (filed 05/20/2002, judgment 03/24/2003), the court cited an unpublished Tenth Circuit opinion as an example of

its applying a regulation concerning disability coverage for alcoholism even after other

related regulations had been amended.

C10–4. In a case affirming en banc a preliminary injunction against enforcement of

drug laws against religious use of a hallucinogenic tea called hoasca, O Centro Espirita
Citing Unpublished Opinions in Federal Appeals

245

Beneficiente Uniao do Vegetal v. Ashcroft (10th

Cir. 02–2323, filed 12/03/2002, judgment

11/12/2004), resolved by published opinion

at 389 F.3d 973, cert. granted, 125 S. Ct. 1846

(2005), both the court and the parties cited

unpublished opinions.

In an opinion by a two-judge panel staying the preliminary injunction pending resolution of the appeal, the court cited an unpublished opinion by the court of appeals for

the Eighth Circuit with a published opinion

by the district court for the Northern District

of Indiana to support a statement that “Even

after enactment of [the Religious Freedom

Restoration Act], religious exemptions from

or defenses to the [Controlled Substances

Act] have not fared well.” An opinion concurring with the en banc opinion and an

opinion concurring in part and dissenting in

part also cite this unpublished Eighth Circuit

opinion. The first of these opinions cites the

Eighth Circuit opinion for the same reason

that the panel opinion does, and the second

of these opinions cites it to distinguish it. The

government also cited this unpublished

Eighth Circuit opinion in its appellant brief to

the three-judge panel that initially heard the

appeal.

The plaintiffs cited unpublished opinions in both their brief to the three-judge

panel that initially heard the appeal and their

brief to the en banc court. Their panel brief

cites an unpublished Tenth Circuit opinion

with a published Sixth Circuit opinion to

support a statement that “A party has not

carried its burden of proof if it has not persuaded the factfinder.” In a discussion of the

standard for a preliminary injunction, their

en banc brief cites a different unpublished

Tenth Circuit opinion to support the statement that the court has recently affirmed that

the proper standard for determining the

status quo is “the last uncontested status.” In

a discussion of the relative weight of preserving the status quo and preventing irreparable

harm, the brief cites a published Tenth Circuit opinion to support a statement that preservation of the status quo eclipses prevention

of irreparable harm, and the brief cites an

unpublished opinion by the district court for

the District of Kansas to support a statement

that “Other courts in this circuit have held

that the purpose is dual; the prevention of

irreparable harm and maintenance of the

status quo.”

The government’s en banc reply brief

cites the same unpublished Tenth Circuit

opinion as cited by the plaintiffs en banc to

support a statement that “the only possible

conclusion is that the injunction here dramatically changes the status quo.”

C10–5. In an ultimately dismissed appeal of a dismissal of a Colorado state prisoner’s complaint, Beierle v. Colorado Department of Corrections (10th Cir. 02–1502, filed

11/13/2002, judgment 08/30/2005), the prisoner cited four unrelated unpublished opinions—three by the court of appeals for the

Tenth Circuit and one by the court of appeals

for the Eighth Circuit—to support an argument for the appointment of counsel.

The brief cites two of the Tenth Circuit

cases to support a statement that “Although

this Court has not addressed in a published

opinion the standards applicable to [a request

for appointed counsel,] it has indicated in at

least two unpublished decisions that if a district court finds that a plaintiff satisfies this

Circuit’s standards for appointment of counsel under section 1915(e), the district court

must make a ‘good faith effort to find an attorney to represent him.’” The brief cites the

third unpublished Tenth Circuit opinion in a

string of citations in “accord” with the Supreme Court’s statement that “section 1915

‘informs lawyers that the court’s requests to

provide legal assistance are appropriate requests, hence not to be ignored or disregarded in the mistaken belief that they are

improper,’ and ‘may meaningfully be read to

legitimize a court’s request to represent a
Citing Unpublished Opinions in Federal Appeals

246

poor litigant and therefore to confront the

lawyer with an important ethical decision.’”

The brief leads a string of citations by

other jurisdictions with a citation to the unpublished Eighth Circuit opinion to support a

statement that “The majority of courts to

have considered the issue . . . have concluded

that federal courts have the inherent power to

appoint counsel for indigent parties in appropriate civil cases.” In a footnote, the opinion is cited to show that the court of appeals

reached a holding in conflict with a published holding by a district court in the

Eighth Circuit adverse to the prisoner’s position.

The state cited two of the unpublished

Tenth Circuit opinions to rebut them, and the

prisoner cited these and the unpublished

Eighth Circuit opinion in his reply brief.

C10–6. In an unsuccessful appeal of an

unsuccessful claim of age discrimination in

employment, Kaster v. Safeco Insurance Co.

(10th Cir. 02–3386, filed 10/28/2002, judgment 12/03/2003), resolved by unpublished

opinion at 82 Fed. Appx. 28, 2003 WL

33854633, the employer’s brief includes three

unpublished opinions in a string citation of

eight opinions supporting a statement that

the plaintiff “does not attempt to distinguish

the numerous . . . authorities cited by the district court in its Opinion” to support a conclusion that the plaintiff did not establish a

prima facie case. One of the unpublished

opinions is by the court of appeals for the

Tenth Circuit, one is by the court of appeals

for the Seventh Circuit, and one is by the district court for the Southern District of Florida.

The brief also cites an unpublished opinion

by the district court for the District of Kansas

to support a statement that “the equitable

tolling doctrine has never been applied to

provide plaintiff with an additional 180 or

300 day time period to file a charge.” The

plaintiff’s reply brief distinguishes the three

unpublished opinions that the employer’s

brief said he had not distinguished.

C10–7. In a pending appeal concerning

the constitutionality of requiring a two-thirds

supermajority for Utah voters to enact legislation concerning the taking of wildlife, Initiative and Referendum Institute v. Walker (10th

Cir. 02–4123, filed 07/24/2002, judgment

pending), the appellees defending constitutionality cited an unpublished Tenth Circuit

opinion as upholding, against a First

Amendment challenge, Wyoming’s supermajority requirement for initiatives. The plaintiffs’ appellant brief distinguishes this opinion and notes in a footnote their previous objection to the defendants’ citation to the unpublished opinion, but acknowledges that the

district court relied on it.

An amicus curiae brief cites an unpublished opinion by the district court for the

Eastern District of Pennsylvania to support

the principle that “individuals interested in

wildlife issues in general” are not a discrete

and insular minority. The opinion is cited as

citing published opinions by the courts of

appeals for the Third and Ninth Circuits.

C10–8. In an unsuccessful appeal of a

criminal sentence for bank fraud on a plea of

guilty, United States v. Gordon (10th Cir. 02–

4171, filed 09/17/2002, judgment

06/18/2003), resolved by published opinion

at United States v. Osborne, 332 F.3d 1307 (10th

Cir. 2003), the appellant’s brief quotes an unpublished opinion by the court of appeals for

the Tenth Circuit to support an argument that

the sentence should be reduced from 84

months to 70 months to reflect “only the actual checks that were fraudulently made and

intended to be cashed,” acknowledging that

“counsel could not find a Tenth Circuit opinion directly on point.”

C10–9. In a tobacco company’s partially

successful appeal of a multimillion dollar

judgment in favor of a smoker who lost both

legs as a result of smoking-related peripheral

vascular disease, Burton v. R.J. Reynolds Tobacco Co. (10th Cir. 02–3262, filed 07/23/2002,

judgment 02/09/2005), resolved by pub-
Citing Unpublished Opinions in Federal Appeals

247

lished opinion at 397 F.3d 906, both parties,

especially the tobacco company, cited unpublished opinions extensively. The tobacco

company cited 18 unpublished opinions—

one by the court of appeals for the Sixth Circuit, three by the district court for the District

of Kansas, and 14 by district courts in other

circuits. The plaintiff cited five unpublished

opinions—one by the district court for the

District of Kansas and four by districts in

other circuits.

Individual Case Analyses

Circuit City Stores West Coast, Inc. v.

Marketplace One, LLC (10th Cir. 02–1052, filed

02/11/2002, judgment 10/10/2002).

Appeal from: District of Colorado.

What happened: Civil appeal dismissed as settled.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Rutter & Wilbanks Corp. v. Shell Oil Co. (10th

Cir. 02–1119, filed 03/12/2002, judgment

07/01/2003).

Appeal from: District of Colorado.

What happened: Appeal by third-party movant

voluntarily dismissed.

Related cases: The selected case is one of several

appeals by third-party movants, all of which were

voluntarily dismissed, Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1117, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1118, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1120, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1121, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1123, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1125, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1126, filed 03/12/2002,

judgment 07/01/2003), Ainsworth v. Shell Oil Co.

(10th Cir. 02–1127, filed 03/13/2002, judgment

07/01/2003), Ainsworth v. Shell Oil Co. (10th Cir.

02–1128, filed 03/13/2002, judgment 07/01/2003),

Wiggins v. Shell Oil Co. (10th Cir. 02–1209, filed

05/06/2002, judgment 07/01/2003). Case number

02–1126 was also selected for this study.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Rutter & Wilbanks Corp. v. Shell Oil Co. (10th

Cir. 02–1126, filed 03/12/2002, judgment

07/01/2003).

Appeal from: District of Colorado.

What happened: Appeal by third-party movant

voluntarily dismissed.

Related cases: The selected case is one of several

appeals by third-party movants, all of which were

voluntarily dismissed, Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1117, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1118, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1119, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1120, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1121, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1123, filed 03/12/2002,

judgment 07/01/2003), Rutter & Wilbanks Corp. v.

Shell Oil Co. (10th Cir. 02–1125, filed 03/12/2002,

judgment 07/01/2003), Ainsworth v. Shell Oil Co.

(10th Cir. 02–1127, filed 03/13/2002, judgment

07/01/2003), Ainsworth v. Shell Oil Co. (10th Cir.

02–1128, filed 03/13/2002, judgment 07/01/2003),

Wiggins v. Shell Oil Co. (10th Cir. 02-1209, filed

05/06/2002, judgment 07/01/2003). Case number

02–1119 was also selected for this study.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Lovato v. Suthers (10th Cir. 02-1132, filed

03/15/2002, judgment 7/15/2002).

Appeal from: District of Colorado.

What happened: Certificate of appealability denied.

Opinion: (2) The court’s unpublished 784-word

order and judgment, Lovato v. Suthers, 42 Fed.

Appx. 400, 2002 WL 1500844 (10th Cir. 2002)

(three headnotes), cites six published opinions

(three by the U.S. Supreme Court and three by the

Tenth Circuit). According to Westlaw

(04/12/2005), the court’s order and judgment has

not been cited elsewhere.

Lander v. Summit County School District (10th

Cir. 02–1160, filed 04/10/2002, judgment

08/13/2004).

Appeal from: District of Colorado.

What happened: Successful appeal of the dismissal of a complaint by a public school teacher

that she was terminated for criticizing management decisions. The court of appeals reversed the
Citing Unpublished Opinions in Federal Appeals

248

district court’s conclusion that the criteria were

not matters of public concern.

Appellant’s brief: The teacher’s 5,252-word appellant brief cites 26 published opinions (eight by

the U.S. Supreme Court, 16 by the Tenth Circuit,

one by another circuit, and one by the District of

Colorado).

Appellee’s brief: The school district’s 5,550-word

appellee brief cites 34 published opinions (three

by the U.S. Supreme Court, 20 by the Tenth Circuit, five by other circuits, one by the District of

Colorado, one by Colorado’s supreme court, and

four by Colorado’s court of appeals).

Appellant’s reply brief: The teacher’s 1,619-word

reply brief cites seven published opinions (one by

the U.S. Supreme Court, four by the Tenth Circuit,

and two by Colorado’s court of appeals).

Opinion: (2) The court’s unpublished 4,276-

word signed order and judgment with a dissent,

Lander v. Summit County School District, 109 Fed.

Appx. 215, 2004 WL 1809525 (10th Cir. 2004) (two

headnotes), cites 25 published opinions (three by

the U.S. Supreme Court, 15 by the Tenth Circuit,

and seven by other circuits). According to Westlaw (04/12/2005), the court’s order and judgment

has been cited in one appellate brief in a Tenth

Circuit case.

Negron v. Barker (10th Cir. 02–1248, filed

05/30/2002, judgment 08/13/2003).

Appeal from: District of Colorado.

What happened: Pro se appeal dismissed for

failure to pay fees.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Oliver v. United States (10th Cir. 02–1283, filed

06/24/2002, judgment 08/13/2002).

Appeal from: District of Colorado.

What happened: Pro se prisoner appeal voluntarily dismissed.

Related case: The court denied the appellant’s

motion to consolidate this appeal with another

appeal by him, Oliver v. United States (10th Cir.

02–1319, filed 07/15/2002, judgment 11/14/2002)

(unsuccessful appeal).

Opinion: (1) The court’s docketed judgment

cites no opinions.

Arellano v. Watkins (10th Cir. 02–1358, filed

08/08/2002, judgment 03/31/2003).

Appeal from: District of Colorado.

What happened: Unsuccessful pro se prisoner

appeal of a dismissal. The district court dismissed

the prisoner’s complaint for failure to pay an initial partial filing fee or file a certified copy of his

prison trust fund account statement.

Opinion: (2) The court’s unpublished 327-word

signed order and judgment, Arellano v. Watkins, 60

Fed. Appx. 760, 2003 WL 1690315 (10th Cir. 2003)

(no headnotes), cites no opinions. According to

Westlaw (04/12/2005), the court’s opinion has not

been cited elsewhere.

Fleetwood v. Webb (10th Cir. 02–1396, filed

09/05/2002, judgment 05/07/2003).

Appeal from: District of Colorado.

What happened: Prisoner’s pro se appeal of the

dismissal of his civil rights complaint for failure to

file necessary papers dismissed.

Related case: Fleetwood v. Lucero, (10th Cir. 02–

1218, filed 05/14/2002, judgment 10/29/2002)

(dismissed for lack of prosecution).

Appellee’s brief: The appellee’s 575-word brief

cites two U.S. Supreme Court opinions.

Opinion: (2) The court’s unpublished 363-word

signed order, Fleetwood v. Webb, 62 Fed. Appx.

914, 2003 WL 21019623 (10th Cir. 2003) (no headnotes), cites one published Tenth Circuit opinion.

According to Westlaw (04/12/2005), the court’s

order has not been cited elsewhere.

Beierle v. Colorado Department of Corrections

(10th Cir. 02–1502, filed 11/13/2002, judgment

08/30/2005).

Appeal from: District of Colorado.

What happened: The appeal of a dismissal of a

Colorado state prisoner’s complaint was ultimately dismissed upon the completion of the

prisoner’s sentence. The selected appeal is of a

dismissal of the prisoner’s complaint that termination of his sex offender treatment program, with

implications for parole eligibility, was wrongful

and without a hearing. After the pro se appellant

and the appellees filed their briefs, the court

granted the prisoner’s motion for appointment of

counsel and a second round of briefs was filed. In

addition to arguing that the prisoner should have

had a hearing on his removal from the prison

program, appointed counsel argued on appeal

that the district court should have appointed

counsel. More than a year after the case was

heard, the appeal was dismissed as moot.

Related cases: Previously the District of Colorado dismissed as frivolous the prisoner’s pro se

complaint that he was threatened with a requirement to work on his Sabbath and was wrongfully

disciplined for sexually stalking a female guard,

behavior that the prisoner denied. The prisoner

appealed the dismissal, Beierle v. Zavares (10th Cir.

99–1383, filed 09/01/1999, judgment 06/12/2000),

and the denial of a preliminary injunction sought

during the appeal, Beierle v. Zavares (10th Cir. 99–
Citing Unpublished Opinions in Federal Appeals

249

1530, filed 11/19/1999, judgment 06/12/2000).

The court of appeals affirmed the denial of the

preliminary injunction, because the complaint

was never served on the defendants, but reversed

the trial court’s dismissal of the complaint, finding

some of the prisoner’s claims plausible, Beierle v.

Zavares, 215 F.3d 1336 (table), 2000 WL 757725

(10th Cir. 2000).

After the Supreme Court decided Apprendi v.

New Jersey, 530 U.S. 466 (2000), the prisoner

sought habeas corpus relief challenging a sentence

enhancement. The court of appeals affirmed the

district court’s dismissal on the grounds that Apprendi did not apply retroactively on collateral

review, Beierle v. Reed, 62 Fed. Appx. 917, 2003 WL

21101482 (10th Cir. 2003), resolving Beierle v. Reed

(10th Cir. 02–1384, filed 08/26/2002, judgment

05/15/2003).

In a separate action, the prisoner filed a pro se

class action challenging prison conditions. The

court of appeals affirmed the district court’s dismissal, because class actions may not be pursued

pro se and the prisoner had been moved to a different prison, Beierle v. Colorado Department of Corrections, 79 Fed. Appx. 373, 2003 WL 22407426

(10th Cir. 2003), resolving Beierle v. Colorado Department of Corrections (10th Cir. 03–1174, filed

04/24/2003, judgment 10/22/2003).

Appellee’s initial brief: The Colorado Department of Corrections’ 1,383-word appellee brief in

response to the prisoner’s initial pro se brief cites

four published opinions (three by the Tenth Circuit and one by another circuit) and one treatise.

Appellant’s brief: The prisoner’s 9,144-word

counseled brief cites 82 published opinions (24 by

the U.S. Supreme Court, 30 by the Tenth Circuit,

19 by other circuits, seven by districts outside the

Tenth Circuit, and one each by Vermont’s and

Florida’s supreme courts); five unpublished opinions (four by the Tenth Circuit, including the prior

appeal in this case, and one by another circuit);

and two law review notes.

The three unrelated unpublished Tenth Circuit

opinions cited in the brief are cited frequently

throughout six pages of the 35-page brief. In addition to being cited to support related statements,

two are cited to support the statement that “Although this Court has not addressed in a published opinion the standards applicable to [a request for appointed counsel,] it has indicated in at

least two unpublished decisions that if a district

court finds that a plaintiff satisfies this Circuit’s

standards for appointment of counsel under section 1915(e), the district court must make a ‘good

faith effort to find an attorney to represent him.’”

(Page 24.) The third unpublished opinion cited is

in an “accord” string citation with one of the other

unpublished opinions amplifying support for the

Supreme Court’s statement that “[S]ection 1915

‘informs lawyers that the court’s requests to provide legal assistance are appropriate requests,

hence not to be ignored or disregarded in the mistaken belief that they are improper,’ and ‘may

meaningfully be read to legitimize a court’s request to represent a poor litigant and therefore to

confront the lawyer with an important ethical decision.’” (Pages 23–24.)

The brief leads a string of citations by other jurisdictions with a citation to an unpublished opinion by the Eighth Circuit to support the statement,

“The majority of courts to have considered the

issue . . . have concluded that federal courts have

the inherent power to appoint counsel for indigent parties in appropriate civil cases.” (Page 18.)

In a footnote, the opinion is cited to show that the

court of appeals in that circuit reached a holding

in conflict with a published holding by a district

court in that circuit adverse to the prisoner’s position. (Page 19, footnote 15.)

Appellee’s brief: The Colorado Department of

Corrections’ 5,514-word appellee brief cites 36

published opinions (12 by the U.S. Supreme

Court, 10 by the Tenth Circuit, six by other circuits, four by districts in other circuits, two by

Colorado’s supreme court, one by Colorado’s appellate court, and one by Vermont’s supreme

court) and three unpublished Tenth Circuit opinions, including the prior appeal in this case.

The two unrelated unpublished Tenth Circuit

opinions cited were cited to rebut the appellant’s

citation of them, stating at the end of a paragraph

that they dealt not with a district judge’s failure to

make sufficient effort to appoint counsel that a

magistrate judge ordered requested, but failure of

the magistrate judge to request counsel in the first

place. (Page 16.)

Appellant’s reply brief: The prisoner’s 5,338-

word reply brief cites 50 published opinions (five

by the U.S. Supreme Court, 23 by the Tenth Circuit, 13 by other circuits, two by the District of

Colorado, one by another Tenth Circuit district,

five by other districts, and one by Colorado’s

court of appeals) and four unpublished opinions

(three by the Tenth Circuit, including the prior

appeal in this case, and one by another circuit).

The two unrelated unpublished Tenth Circuit

opinions are also cited in both the prisoner’s appellant brief and the Colorado Department of

Corrections’ appellee brief. One was cited to support the statement that in that case, “this Court
Citing Unpublished Opinions in Federal Appeals

250

held that the record revealed good faith efforts to

request counsel where it showed that the district

court had contacted four attorneys, each of whom

declined to take the case. By contrast, the district

court’s statement in this case provides no such

details indicating that it made a good faith effort

to request counsel for Mr. Beierle.” (Pages 11–12.)

The second opinion was cited with a published

opinion by another circuit, “both reversing because the district court made no record of its failure to obtain volunteer counsel in an appropriate

case” (page 12, footnote 9), as a “see, e.g.” string

citation supporting the footnote statement, “The

State’s argument that the absence of a record that

‘anything other than a good faith effort [had] been

made’ constitutes a sufficient record of good faith

efforts (State’s Brief at 17) is contrary to law and

common sense, and should not be credited by the

Court.” (Page 12, footnote 9.)

As in the appellant brief, the unpublished

opinion by another circuit is cited to show that the

court of appeals in that circuit reached a holding

in conflict with a published opinion by one of the

circuit’s districts. (Page 4, footnote 2.)

Opinion: (1) The court’s docketed judgment

cites no opinions.

Ward v. Walmart Stores, Inc. (10th Cir. 02–2014,

filed 01/14/2002, judgment 03/13/2002).

Appeal from: District of New Mexico.

What happened: Civil appeal dismissed by

stipulation.

Related case: The case was consolidated with

Ward v. Walmart Stores, Inc. (10th Cir. 01-2375,

filed 12/27/2001, judgment 03/13/2002) (civil

appeal dismissed by stipulation).

Opinion: (1) The court’s docketed judgment

cites no opinions.

United States v. Bono (10th Cir. 02–2035, filed

02/08/2002, judgment 03/11/2003).

Appeal from: District of New Mexico.

What happened: Unsuccessful appeal of a conviction for dealing in crack cocaine.

Related case: This case was consolidated with

United States v. Scull, 10th Cir. 02–2025, filed

01/23/2002, judgment 03/11/2003) (unsuccessful

criminal appeal), which was briefed separately

but resolved by the same opinion.

Appellant’s brief: The defendant’s 7,728-word

appellant brief cites 31 published opinions (10 by

the U.S. Supreme Court, 16 by the Tenth Circuit,

and five by other circuits).

Appellee’s brief: The appellee’s 10,017-word

brief cites 18 published opinions (four by the U.S.

Supreme Court and 14 by the Tenth Circuit).

Appellant’s reply brief: The appellant’s 2,362-

word reply brief cites 11 published opinions

(three by the U.S. Supreme Court, five by the

Tenth Circuit, and three by other circuits).

Opinion: (3) The court’s published 6,396-word

opinion, United States v. Scull, 321 F.3d 1270 (10th

Cir. 2003) (27 headnotes), cites 39 published opinions (nine by the U.S. Supreme Court, 22 by the

Tenth Circuit, six by other circuits, one by a district in another circuit, and one by New Mexico’s

supreme court). According to Westlaw

(04/12/2005), the court’s opinion has been cited

in 11 published opinions (six by the Tenth Circuit,

one in a Tenth Circuit district, one in a district in

another circuit, one in California’s supreme court,

one in Maryland’s court of appeals, and one in

North Carolina’s court of appeals), 10 unpublished opinions (five in the Tenth Circuit, three in

Tenth Circuit districts, one in Michigan’s court of

appeals, and one in Ohio’s court of appeals), 11

secondary sources, and 26 appellate briefs in 23

Tenth Circuit cases, two appellate briefs in a Fifth

Circuit case, one appellate brief in North Carolina’s supreme court, and one appellate brief in

Kansas’s court of appeals.

Carabajal v. LeMaster (10th Cir. 02–2115, filed

05/03/2002, judgment 12/09/2002).

Appeal from: District of New Mexico.

What happened: Certificate of appealability denied in a case claiming ineffective assistance of

counsel.

Appellant’s brief: The appellant’s 12,532-word

brief cites 19 published opinions (eight by the U.S.

Supreme Court, two by the Tenth Circuit, one by

another circuit, five by New Mexico’s supreme

court, and three by New Mexico’s court of appeals).

Opinion: (2) The court’s unpublished 1,305-

word signed order and judgment, Carabajal v. LeMaster, 52 Fed. Appx. 473, 2002 WL 31745054

(10th Cir. 2002) (two headnotes), cites six published opinions (four by the U.S. Supreme Court,

one by the Tenth Circuit, and one by New Mexico’s supreme court). According to Westlaw

(04/12/2005), the court’s order and judgment has

been cited in one secondary source.

Woolstenhulme v. Lemaster (10th Cir. 02–2128,

filed 05/21/2002, judgment 01/10/2003).

Appeal from: District of New Mexico.

What happened: Certificate of appealability denied.

Related case: A prisoner sought to challenge one

plea bargain in this petition and another in another petition filed the same day and resolved by
Citing Unpublished Opinions in Federal Appeals

251

the same order and judgment, Woolstenhulme v.

Lemaster (10th Cir. 02–2129, filed 05/21/2002,

judgment 01/10/2003) (certificate of appealability

denied).

Opinion: (2) The court’s unpublished 842-word

signed order and judgment, Woolstenhulme v. Lemaster, 58 Fed. Appx. 388, 2003 WL 77612 (10th

Cir. 2003) (two headnotes), cites two published

opinions (one by the U.S. Supreme Court and one

by the Tenth Circuit). According to Westlaw

(04/12/2005), the court’s order and judgment has

not been cited elsewhere.

United States v. Singleton (10th Cir. 02–2157,

filed 06/17/2002, judgment 08/01/2003).

Appeal from: District of New Mexico.

What happened: Certificate of appealability denied.

Opinion: (2) The court’s unpublished 781-word

signed order, United States v. Singleton, 62 Fed.

Appx. 254, 2003 WL 1712119 (10th Cir. 2003) (one

headnote), cites three published Tenth Circuit

opinions and one unpublished Tenth Circuit opinion from an earlier phase of this case. According

to Westlaw (04/12/2005), the court’s order and

judgment has not been cited elsewhere.

United States v. Cruz-Alcala (10th Cir. 02–2290,

filed 10/22/2002, judgment 08/11/2003).

Appeal from: District of New Mexico.

What happened: Unsuccessful appeal of a drug

sentence.

Appellant’s brief: The defendant’s 3,328-word

appellant brief cites 10 published opinions (nine

by the Tenth Circuit and one by a district in another circuit).

Appellee’s brief: The government’s 3,097-word

appellee brief cites 17 published opinions (three

by the U.S. Supreme Court, 12 by the Tenth Circuit, and two by other circuits).

Appellant’s reply brief: The defendant’s 894-

word reply brief cites 11 published opinions (one

by the U.S. Supreme Court, seven by the Tenth

Circuit, and three by other circuits).

Opinion: (3) The court’s published 3,120-word

signed opinion, United States v. Cruz-Alcala, 338

F.3d 1194 (10th Cir. 2003) (eight headnotes), cites

25 published opinions (four by the U.S. Supreme

Court, 12 by the Tenth Circuit, and nine by other

circuits) and two unpublished opinions (one by

the Tenth Circuit and one by another circuit).

In a discussion of whether the defendant

waived his right to counsel in prior misdemeanor

prosecutions used to enhance his sentence, the

opinion states “There is, however, no precedential

authority from this court regarding whether an

involuntary or unknowing waiver of counsel

causes a ‘complete denial of counsel.’” (Page 4,

338 F.3d at 1197.) The opinion then cites an unpublished Tenth Circuit opinion with the signal

“but cf.”

To support the court’s determination of which

subsection of the sentencing guidelines controls

enhancement for a prior sentence to probation

and time served, the opinion cites four opinions

by other circuits, including an unpublished opinion by the Ninth Circuit. (Page 10, 338 F.3d at

1199.)

According to Westlaw (04/12/2005), the

court’s opinion has been cited in one published

Tenth Circuit opinion, one published opinion by

another circuit, three secondary sources, and 10

appellate briefs in seven cases (five in the Tenth

Circuit and two in other circuits).

United States ex rel. Tate v. Honeywell, Inc. (10th

Cir. 02–2318, filed 11/26/2002, judgment

08/26/2003).

Appeal from: District of New Mexico.

What happened: Civil appeal dismissed as settled.

Opinion: (1) The court’s docketed judgment

cites no opinions.

O Centro Espirita Beneficiente Uniao do Vegetal

v. Ashcroft (10th Cir. 02–2323, filed 12/03/2002,

judgment 11/12/2004).

Appeal from: District of New Mexico.

What happened: Applying the Religious Freedom Restoration Act (RFRA), the district court

issued a preliminary injunction against enforcement of the Controlled Substances Act (CSA) on

religious use of hoasca, also known as ayahuasca, a

tea-like mixture made from two Brazilian plants—

psychotria viridis and banisteriposis caapi—the first

of which contains a hallucinogen called dimethyltryptamine (DMT). The court of appeals stayed

the injunction pending resolution of the government’s appeal, a panel of the court affirmed the

district court’s injunction over a dissent, and then

the court affirmed the district court’s injunction

en banc. En banc the court held that preliminary

injunctions changing the status quo require a

heightened standard of persuasion (by a vote of 7

to 6) and the preliminary injunction issued in this

case was within the district judge’s discretion (by

a vote of 8 to 5). (Ironically, only two judges

agreed with both parts of the court’s holding.) The

Supreme Court granted the government’s petition

for a writ of certiorari, 125 S. Ct. 1846 (2005), and

heard the case on November 1, 2005.
Citing Unpublished Opinions in Federal Appeals

252

Appellant’s brief: The government’s 13,472-

word appellant brief cites 33 published opinions

(17 by the U.S. Supreme Court; six by the Tenth

Circuit, including the court’s stay of the injunction

in this case pending appeal; seven by other circuits; and three by districts in other circuits), one

unpublished opinion by another circuit, and one

academic article.

The brief cites two opinions cited by the court

in its opinion staying the district court’s injunction pending the appeal—an unpublished opinion

by the Eighth Circuit and a published opinion by

the Northern District of Indiana—to support the

statement, “As this Court noted in granting a stay

pending appeal, post RFRA case law follows [the]

precedent” “that ‘Congress can constitutionally

control the use of drugs that it determines to be

dangerous, even if those drugs are to be used for

religious purposes.’” (Page 36, citation omitted,

quoting a published Eleventh Circuit opinion.)

Appellee’s brief: The plaintiffs’ 14,196-word appellee brief cites 50 published opinions (19 by the

U.S. Supreme Court, 10 by the Tenth Circuit, 17

by other circuits, one by the temporary emergency

court of appeals, two by districts in other circuits,

and one by New York’s appellate division), two

unpublished opinions (one by the Tenth Circuit

and one by the district court in this case), one academic article, and one United Nations report.

The brief cites an unpublished opinion by the

Tenth Circuit and a published opinion by the

Sixth Circuit to support the statement, “A party

has not carried its burden of proof if it has not

persuaded the factfinder.” (Page 20.)

Amicus curiae brief: A 5,236-word amicus curiae

brief filed by Christian organizations cites 21 published opinions (six by the U.S. Supreme Court;

seven by the Tenth Circuit, including the court’s

stay of the injunction in this case pending appeal;

four by other circuits; one by California’s supreme

court; one by Oregon’s supreme court; one by

Arizona’s court of appeals; and one by Oklahoma’s court of criminal appeals) and two law

review articles.

Appellant’s reply brief: The government’s 7,254-

word reply brief cites 29 published opinions

(three by the U.S. Supreme Court, two by the

Tenth Circuit, 20 by other circuits, and four by

districts in other circuits).

Appellee’s supplemental brief: The plaintiffs’

13,927-word supplemental appellee brief en banc

cites 45 published opinions (14 by the U.S. Supreme Court; 15 by the Tenth Circuit, including

the two earlier opinions in this appeal; 10 by other

circuits; one by the District of New Mexico; four

by districts in other circuits; and one by Arizona’s

court of appeals), two unpublished opinions (one

by the Tenth Circuit and one by a Tenth Circuit

district), two treatises, three law review articles,

one law review note, and one state department

report posted on the Web.

In a discussion of the standard for a preliminary injunction, the brief cites an unpublished

Tenth Circuit opinion to support the statement

that the court has recently affirmed that the

proper standard for determining the status quo is

“the last uncontested status.” (Page 14.)

In a discussion of the relative weight of preserving the status quo and preventing irreparable

harm when deciding on a preliminary injunction,

the brief cites a published Tenth Circuit opinion to

support the statement, “In this circuit . . . , preservation of the status quo has tended to eclipse the

need to prevent irreparable harm.” The brief then

cites an unpublished opinion by the District of

Kansas to support the statement, “Other courts in

this circuit have held that the purpose is dual; the

prevention of irreparable harm and maintenance

of the status quo.” (Page 23.)

Appellant’s supplemental brief: The government’s

9,932-word supplemental appellant brief en banc

cites 65 published opinions (25 by the U.S. Supreme Court, 12 by the Tenth Circuit, 26 by other

circuits, and two by districts in other circuits).

Supplemental amicus curiae brief: A 6,583-word

supplemental amicus curiae brief en banc filed by

Christian organizations cites 25 published opinions (six by the U.S. Supreme Court; nine by the

Tenth Circuit, including the two previous opinions in this case; five by other circuits; the District

of New Mexico’s opinion in this case; one by California’s supreme court; one by Oregon’s supreme

court; one by Arizona’s court of appeals; and one

by Oklahoma’s court of criminal appeals), one

treatise, and four law review articles.

Appellee’s supplemental reply brief: The plaintiffs’

5,651-word supplemental reply brief en banc cites

23 published opinions (three by the U.S. Supreme

Court; three by the Tenth Circuit, including the

panel opinion in this appeal; 13 by other circuits;

three by districts in other circuits; and one by the

tax court).

Appellant’s supplemental reply brief: The government’s 4,199-word supplemental reply brief en

banc cites 20 published opinions (four by the U.S.

Supreme Court, 13 by the Tenth Circuit, and three

by other circuits), one unpublished opinion by the

Tenth Circuit, and two law review articles.

The appellants’ en banc reply brief cites the

same unpublished Tenth Circuit opinion as cited
Citing Unpublished Opinions in Federal Appeals

253

in the appellees’ en banc opening brief: “If, as

plaintiffs assert (Pl. Br. 14), the proper way to determine the status quo is to ‘look at the substance

of the injunction and compare it to the status quo

ante,’ Evans v. Fogarty, 2002 U.S. App. LEXIS

17592, at *10, 44 Fed. Appx. 924, 928 (10th Cir.

2002), the only possible conclusion is that the injunction here dramatically changes the status

quo.” (Page 9.)

Opinion: (3) The court published a 1,359-word

signed order staying the district court’s injunction

pending resolution of the appeal, O Centro Espirita

Beneficiente Uniao de Vegetal, 314 F.3d 463 (10th

Cir. 2002) (seven headnotes), citing 15 published

opinions (four by the U.S. Supreme Court, five by

the Tenth Circuit, five by other circuits, and one

by a district in another circuit) and one unpublished opinion by another circuit.

The opinion cites an unpublished opinion by

the Eighth Circuit and a published opinion by the

Northern District of Indiana to support the statement, “Even after enactment of RFRA, religious

exemptions from or defenses to the CSA have not

fared well.” (314 F.3d at 467.)

According to Westlaw (04/13/2005), the

court’s order has been cited in four published

Tenth Circuit opinions, including the two subsequent opinions in this case; one published opinion

by a Tenth Circuit district; three secondary

sources; the petition for a writ of certiorari in the

U.S. Supreme Court in this case; and two appellate briefs in two Tenth Circuit cases.

Initially the court resolved the appeal with a

published 12,380-word signed opinion with a dissent, O Centro Espirita Beneficiente Uniao do Vegetal

v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003) (10 headnotes), citing 35 published opinions (15 by the

U.S. Supreme Court; 12 by the Tenth Circuit,

including the stay issued earlier in the case; seven

by other circuits; and one by a district in another

circuit), one treatise, and one law review article.

According to Westlaw (04/13/2005), the court’s

opinion has been cited in four published opinions

by Tenth Circuit districts, one published opinion

by another district, one published opinion by

Kansas’s court of appeals, eight secondary

sources, the petition for a writ of certiorari in the

U.S. Supreme Court in this case, 10 appellate

briefs in nine Tenth Circuit cases, and two trial

court briefs in two cases (one in a Tenth Circuit

district and one in another district).

The court agreed to rehear the appeal en banc

and published a 33,814-word per curiam opinion

with two opinions concurring in part and dissenting in part, one opinion concurring, and one opinion dissenting, O Centro Espirita Beneficiente Uniao

do Vegetal, 389 F.3d 973 (10th Cir. 2004) (one headnote), citing 117 published opinions (20 by the

U.S. Supreme Court; 24 by the Tenth Circuit,

including the two previous opinions in this case;

38 by other circuits; the opinion by the District of

New Mexico in this case; four by other Tenth Circuit districts; 12 by districts in other circuits; one

by Florida’s supreme court; one by Illinois’s supreme court; three by Illinois’s appellate court;

one by Louisiana’s supreme court; one by Michigan’s supreme court; one by Minnesota’s supreme

court; one by Oregon’s supreme court; three by

Pennsylvania’s supreme court; one by New Jersey’s court of chancery; one by Oklahoma’s court

of appeals; one by South Carolina’s court of appeals; and three by Texas’s courts of civil appeals),

one unpublished opinion by another circuit, five

legal treatises, one other academic book, three law

review articles, four other academic articles, and

two classic texts.

An opinion concurring with the en banc opinion in part and dissenting in part cites the same

unpublished opinion by the Eighth Circuit as the

court’s opinion staying the injunction pending

appeal. In the part of the opinion arguing that the

district court should have been reversed, the dissenting judge cited three opinions to support the

statement that courts have routinely rejected religious exemptions from laws controlling substances

even after RFRA was passed. (Page 20, 389 F.3d at

984.) These include a published opinion by the

Seventh Circuit, a published opinion by the

Northern District of Indiana, and the unpublished

opinion by the Eighth Circuit.

An opinion concurring with the en banc opinion also cites this unpublished Eighth Circuit

opinion. According to the concurring opinion,

“There is no support in the cases cited [by the dissent] for the proposition that any religious use of

any drug is outside the scope of RFRA (or, before

[Employment Division v.] Smith, [494 U.S. 872

(1990),] free exercise) protection.” (Pages 20–21,

389 F.3d at 1020.) The concurring judge said that

“the Eighth Circuit found that the ‘broad use’ of

marijuana advocated by the church in question,

which included supplying the drug to the sick

and distributing it to anyone who wished it, including children with parental permission, made

accommodation impossible.” (Page 21, 389 F.3d at

1020.)

According to Westlaw (04/13/2005), the

court’s opinion has been cited in one published

opinion by another circuit, one unpublished opinion by a district in another circuit, two secondary
Citing Unpublished Opinions in Federal Appeals

254

sources, the petition for a writ of certiorari in the

U.S. Supreme Court in this case, one appellate

brief in the Tenth Circuit, and one trial court brief

in a Tenth Circuit district.

United States v. Rodriguez-Silos (10th Cir. 02–

3103, filed 03/27/2002, judgment 06/21/2002).

Appeal from: District of Kansas.

What happened: Appeal by the defendant of a

downward sentencing departure as insufficient

dismissed for lack of jurisdiction.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Burton v. R.J. Reynolds Tobacco Co. (10th Cir.

02–3262, filed 07/23/2002, judgment 02/09/2005).

Appeal from: District of Kansas.

What happened: Partially successful appeal by a

tobacco company of a judgment in favor of a

smoker for his smoking-related peripheral vascular disease and addiction. The court reversed a

judgment for fraudulent concealment and $15 million in punitive damages attached to that judgment, but affirmed other claims against the tobacco company.

Related case: After the district court entered

judgment on the jury verdict, but before the court

determined the amount of punitive damages, the

defendant filed an appeal, Burton v. R.J. Reynolds

Tobacco Co. (10th Cir. 02–3201, filed 06/17/2002,

judgment 11/27/2002), which was initially consolidated with the index appeal, but subsequently

dismissed as premature.

Appellant’s brief: The tobacco company’s

31,210-word appellant brief cites 158 published

opinions (22 by the U.S. Supreme Court; 39 by the

Tenth Circuit; 23 by other circuits; 27 by the District of Kansas, including five opinions in the

same case; 23 by districts in other circuits; 17 by

Kansas’s supreme court; and seven by other state

courts, including one by Alabama’s supreme

court, one by California’s court of appeal, one by

Maine’s supreme judicial court, one by Massachusetts’s supreme judicial court, one by New York’s

court of appeals, one by the appellate division of

New York’s supreme court, and one by Tennessee’s supreme court), 18 unpublished opinions

(one by another circuit, three by the District of

Kansas, and 14 by districts in other circuits), two

state court judgments (one by the California Superior Court and one by the Florida Circuit Court),

two briefs in other cases (one in a pending U.S.

Supreme Court case and one in a case before a

Kansas state trial court), the Restatement (Second) of

Torts, two treatises, one other book, and one law

review article.

As the numbers indicate, the tobacco company’s brief cites unpublished opinions rather

liberally. None is an opinion by the court of appeals for the Tenth Circuit, however.

In a footnote, the tobacco company’s brief lists

27 opinions to support the argument that the

common knowledge of smoking dangers precludes claims based on failure to warn. One of

these opinions is by another court of appeals and

nine are by district courts in other circuits.

To support the statement that “[n]umerous

other courts throughout the country concur” with

a holding by another court of appeals that fraudulent concealment claims are preempted by the

Federal Cigarette Labeling and Advertising Act,

the brief cites three published district court and

state court opinions and one unpublished opinion

by a district court in another circuit in the main

text with parenthetical explanations and two published district court and state court opinions and

three unpublished opinions by district courts in

other circuits in a footnote (without parenthetical

explanations). (Pages 35–36.)

To support the argument that a defendant’s

damages payments in other cases should be considered in assessing punitive damages, the brief

cites one opinion by another circuit, two opinions

by the District of Kansas, and one opinion by a

district in another circuit. One of the District of

Kansas opinions was not published.

The two unpublished state court judgments

cited are damages awarded against the defendant

in other cases—$10 million in punitive damages

in the California case and $36 billion in total damages in the Florida case.

The brief cites two published and one unpublished opinions in other cases by the trial judge in

this case to show that in other cases the judge had

concluded that the fraudulent concealment cause

of action in Kansas was limited to contract or fiduciary cases. (Page 28.)

The brief cites two opinions by a different

judge in the same district, both of which held that

the Seventh Amendment requires punitive damages to be determined by the jury, even in a diversity case. One of these opinions was published

and the other was not. The brief quotes from the

published opinion and states that one of the quotations was the judge in the published opinion

quoting his prior unpublished opinion. (Page 73.)

Finally, in a footnote the brief cites two opinions by district courts in other circuits to support

the argument that the common knowledge of

smoking dangers precludes a negligent testing
Citing Unpublished Opinions in Federal Appeals

255

claim. One of the opinions cited was not published.

Appellee’s brief: The plaintiff’s 20,983-word appellee brief cites 41 published opinions (four by

the U.S. Supreme Court; 10 by the Tenth Circuit;

three by other circuits; 11 by the District of Kansas, including five opinions in the same case; three

by districts in other circuits; six by Kansas’s supreme court; two by Kansas’s court of appeals;

one by Florida’s supreme court; and one by Florida’s district court of appeal), one brief filed in an

Ohio state trial court, and Black’s Law Dictionary.

Appellant’s reply brief: The tobacco company’s

14,746-word reply brief cites 63 published opinions (nine by the U.S. Supreme Court; 14 by the

Tenth Circuit; 11 by other circuits; 12 by the District of Kansas, including three opinions in the

same case; seven by districts in other circuits; six

by Kansas’s supreme court; and four by other

state courts, including two by Florida’s courts of

appeal, one by New Mexico’s court of appeals,

and one by South Carolina’s supreme court), five

unpublished opinions (one by the District of Kansas and four by districts in other circuits), the Restatement (Second) of Torts, one treatise, and one

legal article.

The brief cites an unpublished opinion by the

District of Kansas as in “accord” with a published

District of Kansas opinion quoted as saying that a

“buyer/seller relationship does not create a fiduciary duty because the parties are dealing at arm’s

length and seeking for themselves the best advantage.” (Page 6.) The brief also cites a published

opinion by a district in another circuit as in “accord” with an unpublished opinion by a different

district in a different circuit, which is quoted as

saying that if “a plaintiff could assert a duty inconsistent with the Labeling Act merely by styling

it ‘fraudulent suppression,’ the preemption provision of the Labeling Act would be deprived of any

meaningful application.” (Pages 9–10.)

The brief cites one published opinion and one

unpublished opinion by two different districts in

two different circuits to support the statement that

“since Reynolds filed its opening brief, at least

two other well-reasoned decisions have reaffirmed that post-July 1969 fraudulent concealment

claims are preempted by the Labeling Act.” (Page

10.)

An unpublished opinion is listed among two

published opinions, all by different district courts

in different circuits, as in “accord” with a quotation from a published opinion by another circuit

stating that knowledge of the link between smoking and plaintiff’s specific ailment “is irrelevant in

light of the serious nature of the other diseases

known at that time to be caused by smoking.”

(Page 17.)

Three district court opinions by three different

districts in three different circuits, two unpublished and one published, are cited as in “accord”

with a published opinion by another circuit that

observed that “allegations that tobacco companies

‘still refuse to admit, and continue to conceal’ the

addictive nature of smoking do not constitute

continuing fraud given public’s awareness that

smoking causes addiction.” (Pages 20–21.) One of

these unpublished opinions is cited elsewhere in

the brief; the other was affirmed by a published

appellate opinion.

Opinion: (3) The court’s published 9,529-word

signed opinion with a dissent, Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906 (10th Cir. 2005) (20

headnotes), cites 45 published opinions (three by

the U.S. Supreme Court; 14 by the Tenth Circuit;

two by other circuits; seven by the District of Kansas, including three in this case; 15 by Kansas’s

supreme court; three by Kansas’s court of appeals;

and one by South Carolina’s court of appeals) and

three treatises. According to Westlaw

(04/07/2005), the court’s opinion has been cited

in five secondary sources and one appellate brief

in one Tenth Circuit case.

Rural Water District No. 1 v. City of Wilson

(10th Cir. 02–3290, filed 08/09/2002, judgment

02/20/2003).

Appeal from: District of Kansas.

What happened: Civil appeal dismissed for failure to file a brief.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Holley v. Andraschko (10th Cir. 02–3372, filed

10/16/2002, judgment 10/22/2003).

Appeal from: District of Kansas.

What happened: Unsuccessful pro se appeal of

the denial of habeas corpus relief on the grounds

that the expiration of the prisoner’s sentence

mooted the petition.

Related case: Decided by the same opinion was

Holley v. Lansing (10th Cir. 02–3374, filed

10/16/2002, judgment 10/22/2003) (a second habeas corpus petition mooted by the prisoner’s release).

Opinion: (2) The court’s unpublished 757-word

signed order and judgment, Holley v. Andraschko,

80 Fed. Appx. 614, 2003 WL 22407416 (10th Cir.

2003) (one headnote), cites five published opinions (two by the U.S. Supreme Court and three by

the Tenth Circuit). According to Westlaw
Citing Unpublished Opinions in Federal Appeals

256

(04/12/2005), the court’s order and judgment has

been cited in one unpublished opinion from a district in another circuit and in one secondary

source.

Kaster v. Safeco Insurance Co. (10th Cir. 02–3386,

filed 10/28/2002, judgment 12/03/2003).

Appeal from: District of Kansas.

What happened: Unsuccessful appeal of an unsuccessful claim of age discrimination in employment.

Appellant’s brief: The plaintiff’s 8,331-word appellant brief cites 24 published opinions (three by

the U.S. Supreme Court, 14 by the Tenth Circuit,

six by other circuits, and one by the District of

Kansas).

Appellee’s brief: The employer’s 7,658-word appellee brief cites 20 published opinions (three by

the U.S. Supreme Court, nine by the Tenth Circuit,

five by other circuits, two by the District of Kansas, and one by a district in another circuit) and

four unpublished opinions (one by the Tenth Circuit, one by another circuit, one by the District of

Kansas, and one by a district in another circuit).

The brief includes eight opinions in a string

citation supporting a statement that the plaintiff

“does not attempt to distinguish the numerous . . .

authorities cited by the district court in its Opinion” to support a conclusion that the plaintiff did

not establish a prima facie case. (Pages 18–19.)

These eight opinions include one published opinion by the Tenth Circuit, four published opinions

by other circuits, one unpublished opinion by the

Tenth Circuit, one unpublished opinion by the

Seventh Circuit, and one unpublished opinion by

the Southern District of Florida.

The brief cites an unpublished opinion by the

District of Kansas case to support a statement that

“the equitable tolling doctrine has never been applied to provide plaintiff with an additional 180 or

300 day time period to file a charge.” (Page 18.)

Appellant’s reply brief: The plaintiff’s 4,193-

word reply brief cites 25 published opinions

(three by the U.S. Supreme Court, eight by the

Tenth Circuit, 11 by other circuits, two by the District of Kansas, and one by a district in another

circuit) and three unpublished opinions (one by

the Tenth Circuit, one by another circuit, and one

by a district in another circuit).

The plaintiff’s reply brief distinguishes eight

opinions cited by the district court that the defendant’s appellee brief states the plaintiff had not

yet distinguished. Three of these are unpublished

opinions—one by the Tenth Circuit, one by the

Seventh Circuit, and one by the Southern District

of Florida.

Opinion: (2) The court’s unpublished 864-word

signed order and judgment, Kaster v. Safeco Insurance Co., 82 Fed. Appx. 28, 2003 WL 33854633

(10th Cir. 2003) (three headnotes), cites six published opinions (one by the U.S. Supreme Court,

four by the Tenth Circuit, and the opinion by the

District of Kansas in this case). According to Westlaw (04/12/2005), the court’s opinion has been

cited in eight opinions by the District of Kansas

(seven published and one unpublished), one unpublished opinion by a district in another circuit,

and two secondary sources.

United States v. Cesspooch (10th Cir. 02–4008,

filed 01/15/2002, judgment 08/08/2002).

Appeal from: District of Utah.

What happened: Certificate of appealability denied in a case the district court dismissed for lack

of prosecution.

Related case: United States v. Cesspooch (10th Cir.

97–4013, filed 02/04/1997, judgment 04/29/1998)

(prior unsuccessful criminal appeal).

Opinion: (2) The court’s unpublished 384-word

signed order and judgment, United States v. Cesspooch, 44 Fed. Appx. 359, 2002 WL 1813895 (10th

Cir. 2002) (one headnote), cites one U.S. Supreme

Court opinion and the unpublished Tenth Circuit

opinion resolving the prisoner’s earlier appeal of

his conviction. According to Westlaw

(04/12/2005), the court’s order and judgment has

not been cited elsewhere.

United States v. Blake (10th Cir. 02–4034, filed

02/22/2002, judgment 03/04/2003).

Appeal from: District of Utah.

What happened: Successful cross-appeal by the

government of a defendant’s sentence consolidated with the defendant’s unsuccessful appeal

and a codefendant’s unsuccessful appeal.

Related cases: United States v. Larson (10th Cir.

02–4013, filed 01/23/2002, judgment 03/04/2003)

(codefendant’s appeal) and United States v. Blake

(10th Cir. 02–4016, filed 01/28/2002, judgment

03/04/2003) (defendant’s appeal).

Appellant’s brief: The defendant and crossappellee’s 5,798-word appellant brief cites 21 published opinions (two by the U.S. Supreme Court,

15 by the Tenth Circuit, three by other circuits,

and one by the District of Utah).

Appellee’s brief: The government’s 8,815-word

cross-appellant and appellee brief cites 30 published opinions (two by the U.S. Supreme Court,

20 by the Tenth Circuit, seven by other circuits,

and one by the District of Utah).

Appellant’s reply brief: The defendant’s 2,396-

word cross-appellee and reply brief cites 10 pub-
Citing Unpublished Opinions in Federal Appeals

257

lished opinions (one by the U.S. Supreme Court,

eight by the Tenth Circuit, and one by a Tenth

Circuit district).

Opinion: (2) The court’s unpublished 6,003-

word signed order and judgment, United States v.

Larson, 63 Fed. Appx. 416, 2003 WL 723961 (10th

Cir. 2003) (12 headnotes), cites 29 published opinions (eight by the U.S. Supreme Court, 14 by the

Tenth Circuit, and seven by other circuits). According to Westlaw (04/12/2005), the court’s

opinion has been cited in four secondary sources,

one appellant brief in a Tenth Circuit case, and

one trial court brief in a district in another circuit.

Ruben v. Ballard Medical Products (10th Cir. 02–

4035, filed 02/28/2002, judgment 05/09/2002).

Appeal from: District of Utah.

What happened: Civil appeal dismissed after

mediation.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Orritt v. United States (10th Cir. 02–4083, filed

05/20/2002, judgment 11/04/2002).

Appeal from: District of Utah.

What happened: Civil appeal dismissed as settled.

Opinion: (1) The court’s docketed judgment

cites no opinions.

United States v. Osborne (10th Cir. 02–4119, filed

07/23/2002, judgment 06/18/2003).

Appeal from: District of Utah.

What happened: Unsuccessful appeal of a criminal sentence for bank fraud on a plea of guilty.

Related cases: The court’s opinion also affirmed

the codefendants’ sentences: United States v. Reese

(10th Cir. 02–4167, filed 09/10/2002, judgment

06/18/2003) and United States v. Gordon (10th Cir.

02–4171, filed 09/17/2002, judgment 06/18/2003).

Case number 02–4171 was also selected for this

study.

Appellant’s brief: The defendant’s 4,011-word

appellant brief cites seven published Tenth Circuit

opinions.

Appellee’s brief: The government’s 3,285-word

appellee brief cites five published opinions (two

by the Tenth Circuit and three by other circuits).

Opinion: (3) The court’s published 3,130-word

signed opinion, United States v. Osborne, 332 F.3d

1307 (10th Cir. 2003) (12 headnotes), cites 12 published opinions (11 by the Tenth Circuit and one

by another circuit). According to Westlaw

(04/12/2005), the court’s opinion has been cited

in four opinions by the Tenth Circuit (one published and three unpublished), one published

opinion by another circuit, three secondary

sources, and eight appellate briefs in eight cases

(six in the Tenth Circuit and two in another circuit).

Initiative and Referendum Institute v. Walker

(10th Cir. 02–4123, filed 07/24/2002, judgment

pending).

Appeal from: District of Utah.

What happened: In an action challenging a requirement by Utah’s constitution of a  supermajority for voters to enact legislation concerning the

taking of wildlife, the state defendants’ crossappeal was consolidated with the plaintiffs’ appeal. The plaintiffs appealed a dismissal of the

action on the ground that the provision did not

violate the First Amendment of the U.S. Constitution, and the state cross-appealed the plaintiffs’

standing.

Initially the case was heard by a three-judge

panel, but before the panel reached a decision the

full court voted to hear the case en banc. En banc

arguments were held 11/15/2005.

Related case: Initiative and Referendum Institute v.

Walker (10th Cir. 02–4105, filed 06/28/2002,

judgment pending) (plaintiff’s appeal).

Appellant’s brief: The plaintiffs’ and crossappellees’ 11,159-word appellant brief cites 46

published opinions (23 by the U.S. Supreme

Court, seven by the Tenth Circuit, nine by other

circuits, two by Utah’s supreme court, one by

Utah’s court of appeals, two by Colorado’s supreme court, one by Nebraska’s supreme court,

and one by Washington’s supreme court), one

unpublished Tenth Circuit opinion, one law review article, one report by one of the plaintiffs,

and one newspaper article attached to the complaint.

The brief distinguishes three opinions relied

upon by the defendants and amici as inapplicable

to this appeal because they concern general regulation of the initiative process—a published Tenth

Circuit opinion, an unpublished Tenth Circuit

opinion, and a published opinion by another circuit. (Pages 14–15.) In a footnote, the brief comments on the plaintiffs’ previous objection to the

defendants’ reliance on an unpublished Tenth

Circuit opinion, but acknowledges that the district

court relied on it as well.

Appellee’s brief: The state’s 6,492-word appellee

and cross-appellant brief cites 42 published opinions (27 by the U.S. Supreme Court, seven by the

Tenth Circuit, seven by other circuits, and one by

a district in another circuit) and one unpublished

Tenth Circuit opinion.

The state cited the same unpublished Tenth

Circuit opinion cited by the plaintiffs as an opin-
Citing Unpublished Opinions in Federal Appeals

258

ion upholding Wyoming’s supermajority requirement for initiatives against a First Amendment challenge. (Pages 10–11.)

Amicus curiae brief: Various amici filed a 7,521-

word brief, citing 49 published opinions (25 by the

U.S. Supreme Court, two by the Tenth Circuit,

seven by other circuits, four by districts in other

circuits, three by Utah’s supreme court, three by

California’s supreme court, one by California’s

court of appeal, one by Colorado’s supreme court,

one by Idaho’s supreme court, one by West Virginia’s supreme court of appeals, and one by Arizona’s court of appeals) and one unpublished

opinion by a district in another circuit.

To support the principle that “individuals interested in wildlife issues in general” are not a

discrete and insular minority, the amicus brief

cites an unpublished opinion by the Eastern District of Pennsylvania, which is cited as citing published opinions by the Third and Ninth Circuits.

(Page 22.)

Appellant’s reply brief: The plaintiffs’ and crossappellees’ 9,742-word reply brief cites 37 published opinions (18 by the U.S. Supreme Court, 11

by the Tenth Circuit, five by other circuits, two by

Utah’s supreme court, and one by Colorado’s supreme court), four books, and one National Conference of State Legislatures report.

Opinion: (0) The case is still open.

Tate v. Potter (10th Cir. 02–4125, filed 07/24/2002,

judgment 11/20/2002).

Appeal from: District of Utah.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Zazueta-Verdugo v. United States (10th Cir. 02–

4146, filed 08/16/2002, judgment 09/23/2002).

Appeal from: District of Utah.

What happened: Permission to file successive

petitions for habeas corpus relief dismissed for

failure to file a motion.

Opinion: (1) The court’s docketed judgment

cites no opinions.

United States v. Gordon (10th Cir. 02–4171, filed

09/17/2002, judgment 06/18/2003).

Appeal from: District of Utah.

What happened: Unsuccessful appeal of a criminal sentence for bank fraud on a plea of guilty.

Related cases: The court’s opinion also affirmed

the codefendants’ sentences: United States v. Osborne (10th Cir. 02–4119, filed 07/23/2002, judgment 06/18/2003) and United States v. Reese (10th

Cir. 02–4167, filed 09/10/2002, judgment

06/18/2003). Case number 02–4119 was also selected for this study.

Appellant’s brief: The defendant’s 2,957-word

appellant brief cites one published Tenth Circuit

opinion and one unpublished Tenth Circuit opinion.

To support an argument that the defendant’s

sentence should be reduced from 84 months to 70

months to reflect “only the actual checks that

were fraudulently made and intended to be

cashed,” the brief quotes an unpublished Tenth

Circuit opinion, acknowledging that “counsel

could not find a Tenth Circuit opinion directly on

point.” (Page 11.)

Appellee’s brief: The government’s 1,434-word

appellee brief cites five published opinions (one

by the U.S. Supreme Court and four by the Tenth

Circuit).

Opinion: (3) The court’s published 3,130-word

signed opinion, United States v. Osborne, 332 F.3d

1307 (10th Cir. 2003) (12 headnotes), cites 12 published opinions (11 by the Tenth Circuit and one

by another circuit). According to Westlaw

(04/12/2005), the court’s opinion has been cited

in four opinions by the Tenth Circuit (one published and three unpublished), one published

opinion by another circuit, three secondary

sources, and eight appellate briefs in eight cases

(six in the Tenth Circuit and two in another circuit).

Utah Animal Rights Coalition v. Salt Lake City

Corp. (10th Cir. 02–4174, filed 09/17/2002,

judgment 06/16/2004).

Appeal from: District of Utah.

What happened: Unsuccessful appeal by animal

rights advocates of their constitutional challenge

to the amount of time it took Salt Lake City to review their application for a permit to demonstrate

during the winter Olympics.

Appellant’s brief: The advocates’ 5,783-word

appellant brief cites 15 published opinions (eight

by the U.S. Supreme Court, five by the Tenth Circuit, one by another circuit, and one by a Tenth

Circuit district).

Appellee’s brief: The city’s 3,691-word appellee

brief cites seven published opinions (five by the

U.S. Supreme Court and two by the Tenth Circuit).

Appellant’s reply brief: The advocates’ 2,306-

word reply brief cites eight published opinions

(five by the U.S. Supreme Court, two by the Tenth

Circuit, and one by another circuit).

Opinion: (3) The court’s published 14,619-word

signed opinion with two concurrences, Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d
Citing Unpublished Opinions in Federal Appeals

259

1248 (10th Cir. 2004) (nine headnotes), cites 71

published opinions (34 by the U.S. Supreme

Court, 16 by the Tenth Circuit, 18 by other circuits, and three by Utah’s supreme court), two

treatises, one case book, three law review articles,

one law review note, and two movies. According

to Westlaw (04/12/2005), the court’s opinion has

been cited in five opinions by the Tenth Circuit

(one published and four unpublished), five published opinions by other circuits, one unpublished

opinion by a district in another circuit, one published opinion by New York’s supreme court, two

secondary sources, five appellate briefs in four

cases (three in the Tenth Circuit and one in another circuit), and two trial court briefs in two

cases (one in a Tenth Circuit district and one in a

district in another circuit).

Campanella v. United States (10th Cir. 02–4214,

filed 10/30/2002, judgment 06/26/2003).

Appeal from: District of Utah.

What happened: Pro se appeal dismissed for

failure to file a brief and pay fees.

Related cases: Campanella v. State of Utah (10th

Cir. 02–4235, filed 11/22/2002, judgment

10/10/2003) (petition to proceed in forma pauperis denied), Campanella v. Utah County Jail (10th

Cir. 02–4215, filed 10/30/2002, judgment

10/10/2003) (petition to proceed in forma pauperis denied), and Campanella v. State of Utah (10th

Cir. 02–4183, filed 09/24/2002, judgment

10/10/2003) (petition to proceed in forma pauperis and certificate of appealability denied).

Opinion: (1) The court’s docketed judgment

cites no opinions.

Jackson v. Barnhart (10th Cir. 02–5065, filed

05/20/2002, judgment 03/24/2003).

Appeal from: Northern District of Oklahoma.

What happened: Rescission of social security disability benefits reversed.

Appellant’s brief: The claimant’s 9,315-word appellant brief cites 32 published opinions (three by

the U.S. Supreme Court, 23 by the Tenth Circuit,

three by other circuits, one by a Tenth Circuit district, and two by districts in other circuits) and

three medical texts.

Appellee’s brief: The government’s 8,892-word

appellee brief cites 29 published opinions (two by

the U.S. Supreme Court, 25 by the Tenth Circuit,

and two by other circuits) and two medical texts.

Appellant’s reply brief: The claimant’s 2,361-

word reply brief cites 13 published opinions (five

by the Tenth Circuit, seven by other circuits, and

one by a Tenth Circuit district).

Opinion: (2) The court’s unpublished 2,589-

word signed order and judgment, Jackson v.

Barnhart, 60 Fed. Appx. 255, 2003 WL 1473554

(10th Cir. 2003) (three headnotes), cites nine published opinions (seven by the Tenth Circuit and

two by other circuits) and one unpublished opinion by the Tenth Circuit.

The court cited an unpublished Tenth Circuit

opinion as an example of its applying a regulation

concerning disability coverage for alcoholism

even after other related regulations had been

amended. (Pages 3–4, 60 Fed. Appx. at 256, note

1.)

According to Westlaw (04/12/2005), the

court’s opinion has been cited in one published

opinion by a district in another circuit, one secondary source, and two appellate briefs in one Tenth

Circuit case.

Wilson v. Independent School District No. 7 (10th

Cir. 02–5144, filed 09/12/2002, judgment

11/05/2002).

Appeal from: Northern District of Oklahoma.

What happened: Interlocutory appeal of partial

summary judgment denied.

Related case: A related appeal of right involving

the same issues and operative facts as the selected

appeal was dismissed by stipulation, Earp v. Independent School District No. 7 (10th Cir. 02–5145,

filed 09/12/2002, judgment 04/12/2005).

Opinion: (1) The court’s docketed judgment

cites no opinions.

Lowe v. Potter (10th Cir. 02–5205, filed

12/11/2002, judgment 12/03/2003).

Appeal from: Northern District of Oklahoma.

What happened: Pro se appeal dismissed for

failure to file an appellant’s brief.

Opinion: (1) The court’s docket judgment cites

no opinions.

American Lung Association of Oklahoma v. Post

1320 Veterans of Foreign Wars (10th Cir. 02–5209,

filed 12/16/2002, judgment 01/24/2003).

Appeal from: Northern District of Oklahoma.

What happened: Civil appeal dismissed as settled.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Clark v. United States Department of the Army

(10th Cir. 02–6009, filed 01/11/2002, judgment

02/20/2002).

Appeal from: Western District of Oklahoma.

What happened: Civil appeal voluntarily dismissed.
Citing Unpublished Opinions in Federal Appeals

260

Opinion: (1) The court’s docketed judgment

cites no opinions.

Elk Association LP v. Far West Healthcare, Inc.

(10th Cir. 02–6089, filed 03/12/2002, judgment

04/24/2002).

Appeal from: Western District of Oklahoma.

What happened: Civil appeal dismissed as settled.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Thompson v. Guilfoyle (10th Cir. 02–6256, filed

08/12/2002, judgment 01/07/2003).

Appeal from: Western District of Oklahoma.

What happened: Pro se appeal dismissed.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Duncan v. Beck (10th Cir. 02–6291, filed

09/13/2002, judgment 10/01/2002).

Appeal from: Western District of Oklahoma.

What happened: Request for permission to file a

successive habeas corpus petition dismissed.

Related cases: Duncan v. Champion (10th Cir. 99–

6029, filed 01/26/1999, judgment 11/08/1999)

(certificate of appealability denied) and Duncan v.

Beck (10th Cir. 02–6377, filed 11/26/2002, judgment 12/12/2002) (petition to file successive habeas corpus petition treated as a petition to rehear

02–6291 and denied).

Opinion: (1) The court’s docket judgment cites

no opinions.

Vance v. United States (10th Cir. 02–6346, filed

10/24/2002, judgment 03/17/2003).

Appeal from: Western District of Oklahoma.

What happened: Unsuccessful pro se appeal of

the district court’s denial of the plaintiff’s claim

that a tax judgment was obtained through fraud.

Related case: United States v. Vance (10th Cir. 99–

6291, filed 08/10/1999, judgment 06/02/2000)

(affirming the reduction of tax obligations to judgment).

Appellee’s brief: The government’s 5,373-word

appellee brief cites 28 published opinions (one by

the U.S. Supreme Court, 22 by the Tenth Circuit,

and five by other circuits) and two unpublished

judgments—the decisions by the Western District

of Oklahoma and the Tenth Circuit in the original

case.

Opinion: (2) The court’s unpublished 1,282-

word signed order and judgment, Vance v. United

States, 60 Fed. Appx. 236, 2003 WL 1194218 (10th

Cir. 2003) (no headnotes), cites six published opinions (one by the U.S. Supreme Court and five by

the Tenth Circuit) and two unpublished judgments—the decisions by the Western District of

Oklahoma and the Tenth Circuit in the original

case. According to Westlaw (04/12/2005), the

court’s order and judgment has been cited in one

unpublished opinion by the Tenth Circuit, two

secondary sources, and one appellate brief in a

Tenth Circuit case.

Tillis v. Ward (10th Cir. 02–6389, filed 12/06/2002,

judgment 05/15/2003).

Appeal from: Western District of Oklahoma.

What happened: Certificate of appealability denied.

Opinion: (2) The court’s unpublished 450-word

signed order, Tillis v. Ward, 65 Fed. Appx. 254,

2003 WL 21101495 (10th Cir. 2003) (one headnote),

cites two published opinions (one by the U.S. Supreme Court and one by the Tenth Circuit). According to Westlaw (04/12/2005), the court’s order has been cited in one unpublished opinion in

a Tenth Circuit district.

United States v. O’Flanagan (10th Cir. 02–8014,

filed 02/26/2002, judgment 08/15/2003).

Appeal from: District of Wyoming.

What happened: Unsuccessful appeal of a criminal sentence.

Appellant’s brief: The defendant’s 3,367-word

appellant brief cites 14 published opinions (eight

by the Tenth Circuit and six by other circuits).

Appellee’s brief: The government’s 4,696-word

appellee brief cites 17 published opinions (two by

the U.S. Supreme Court, seven by the Tenth Circuit, and eight by other circuits).

Appellant’s reply brief: The defendant’s 2,300-

word reply brief cites five published opinions by

other circuits.

Opinion: (3) The court’s published 2,981-word

opinion, United States v. O’Flanagan, 339 F.3d 1229

(10th Cir. 2003) (four headnotes), cites 15 published opinions (five by the U.S. Supreme Court,

three by the Tenth Circuit, and seven by other

circuits). According to Westlaw (04/12/2005), the

court’s opinion has been cited in two published

Tenth Circuit opinions, three unpublished opinions (one in the Tenth Circuit, one in another circuit, and one in a Tenth Circuit district), two secondary sources, and three appellate briefs in three

Tenth Circuit cases.

Humphrey v. Everett (10th Cir. 02–8030, filed

03/28/2002, judgment 12/20/2002).

Appeal from: District of Wyoming.

What happened: Certificate of appealability denied.

Opinion: (2) The court’s unpublished 354-word

signed order and judgment, Humphrey v. Everett,
Citing Unpublished Opinions in Federal Appeals

261

53 Fed. Appx. 533, 2002 WL 31846326 (10th Cir.

2002) (no headnotes), cites two published opinions (one by the U.S. Supreme Court and one by

Wyoming’s supreme court). According to Westlaw (04/12/2005), the court’s order and judgment

has not been cited elsewhere.

Berhanmeskel v. Ashcroft (10th Cir. 02–9521, filed

04/02/2002, judgment 03/30/2004).

Appeal from: Board of Immigration Appeals.

What happened: Immigration appeal dismissed

for failure to prosecute.

Petitioner’s brief: The petitioner’s 7,972-word

brief cites 30 published court opinions (six by the

U.S. Supreme Court, four by the Tenth Circuit, 19

by other circuits, and one by a district in another

circuit), 13 published decisions of the Board of

Immigration Appeals, and Black’s Law Dictionary.

Respondent’s brief: The government’s 4,692-

word respondent brief cites 14 published opinions

(three by the U.S. Supreme Court, four by the

Tenth Circuit, and seven by other circuits).

Opinion: (1) The court’s docketed judgment

cites no opinions.

Olsen v. Director (10th Cir. 02–9529, filed

05/10/2002, transferred 05/22/2002).

Appeal from: Office of Workers’ Compensation

Programs.

What happened: Workers’ compensation petition transferred to the Ninth Circuit.

Related cases: Also transferred were Olsen v.

Department of Labor (10th Cir. 01–9519, filed

05/24/2001, transferred 05/22/2002) and Olsen v.

Director (10th Cir. 01–9540, filed 11/09/2001,

transferred 05/22/2002).

Opinion: (1) The court’s docketed judgment

cites no opinions.

Wiransane v. Ashcroft (10th Cir. 02–9555, filed

08/15/2002, judgment 04/27/2004).

Appeal from: Board of Immigration Appeals.

What happened: Successful immigration appeal.

The court determined that the immigration judge

should have afforded the petitioner’s claims of

Chinese ethnicity more credibility and evaluated

the persecution of ethnic Chinese in Indonesia.

Petitioner’s brief: The petitioner’s 7,142-word

brief cites 24 published court opinions (eight by

the U.S. Supreme Court, 10 by the Tenth Circuit,

and six by other circuits), six published decisions

by the Board of Immigration Appeals, one legal

article, and one newspaper article.

Amicus brief: The American Immigration Law

Foundation filed a 7,130-word amicus curiae brief

to challenge new procedures of the Board of Immigration Appeals resulting in a large number of

affirmances without opinion, citing 52 published

court opinions (nine by the U.S. Supreme Court,

eight by the Tenth Circuit, and 35 by other circuits), two published decisions by the Board of

Immigration Appeals, and two newspaper websites.

Respondent’s brief: The government’s 9,082-

word respondent brief cites 50 published court

opinions (10 by the U.S. Supreme Court, 13 by the

Tenth Circuit, and 27 by other circuits), two published decisions by the Board of Immigration Appeals, and two treatises.

Opinion: (3) The court’s published 4,356-word

signed opinion, Wiransane v. Ashcroft, 366 F.3d 889

(10th Cir. 2004) (22 headnotes), cites 20 published

court opinions (two by the U.S. Supreme Court,

seven by the Tenth Circuit, and 11 by other circuits), two published decisions by the Board of

Immigration Appeals, two unpublished opinions

(one by the Tenth Circuit and one by another circuit), two treatises, and a Human Rights Watch

report.

The court cited unpublished opinions by the

Tenth and Third Circuits to support a statement

that an immigrant’s claim for asylum or restriction on removal depends on current conditions:

“Subsequent events in Indonesia may well undercut Petitioner’s claims.” (Page 16.)

According to Westlaw (04/12/2005), the

court’s opinion has been cited in 10 Tenth Circuit

opinions (two published and eight unpublished),

one unpublished opinion by another circuit, two

secondary sources, and 14 appellate briefs in 14

cases (two in the U.S. Supreme Court and 12 in

the Tenth Circuit).

Nyombi v. Ashcroft (10th Cir. 02–9563, filed

09/27/2002, judgment 01/22/2004).

Appeal from: Board of Immigration Appeals.

What happened: Successful asylum appeal by a

Ugandan. The court remanded the case, because

the immigration judge gave insufficient reasons

for deciding the asylum applicant lacked credibility.

Petitioner’s brief: The petitioner’s 6,115-word

brief cites 13 published court opinions (six by the

U.S. Supreme Court, two by the Tenth Circuit,

and five by other circuits) and five published decisions by the Board of Immigration Appeals.

Respondent’s brief: The government’s 7,047-

word respondent brief cites 31 published court

opinions (nine by the U.S. Supreme Court, six by

the Tenth Circuit, 16 by other circuits) and one

published decision by the Board of Immigration

Appeals.
Citing Unpublished Opinions in Federal Appeals

262

Opinion: (2) The court’s unpublished 1,480-

word signed order and judgment, Nyombi v. Ashcroft, 86 Fed. Appx. 380, 2004 WL 100518 (10th Cir.

2004) (one headnote), cites seven published opinions (one by the U.S. Supreme Court, four by the

Tenth Circuit, and two by other circuits). According to Westlaw (04/12/2005), the court’s order

and judgment has been cited in one secondary

source and one appellant brief in a Tenth Circuit

case.

11. Eleventh Circuit113

In the Eleventh Circuit, unpublished opinions

are not binding precedent, but they may be

cited as persuasive authority.

114

Of the 50 cases randomly selected, 49 are

appeals from district courts (11 from the

Southern District of Florida, eight each from

the Middle District of Florida and the Northern District of Georgia, six from the Middle

District of Alabama, five from the Middle

District of Georgia, four from the Southern

District of Georgia, and two each from the

Northern District of Alabama and the South-

 113. Docket sheets are on PACER, and they include

links to many briefs. (Docket sheets in criminal cases

became available electronically December 1, 2004. Of

the 23 cases in this sample with briefs, all briefs are on

PACER for 11 cases, some briefs are on PACER for

seven cases, and no briefs are on PACER for five cases.)

Published opinions are on Westlaw. Unpublished opinions issued before April 18, 2005, are not available electronically. Most briefs are on Westlaw. (Of the 20 cases

with counseled briefs resolved by opinion, all briefs are

on Westlaw for 16 cases, some briefs are on Westlaw for

one case, and no briefs are on Westlaw for three cases.)

114. 11th Cir. L.R. 36–2 (“Unpublished opinions are

not considered binding precedent. They may be cited as

persuasive authority, provided that a copy of the unpublished opinion is attached to or incorporated within

the brief, petition, motion or response in which such

citation is made.”).

At the time the Eleventh Circuit split from the Fifth,

unpublished opinions in the Fifth Circuit were precedential. The court adopted a rule designating unpublished opinions non-precedential on April 1, 1987.

ern District of Alabama) and one is an appeal

from the Board of Immigration Appeals.

115

The publication rate in this sample is 2%.

One of the appeals was resolved by a published per curiam opinion, 19 were resolved

by unpublished per curiam opinions tabled

in the Federal Appendix (one with a partial dissent), and 30 were resolved by docket judgments.

The published opinion was 679 words in

length. Unpublished opinions averaged 1,446

words in length, ranging from 93 to 3,871.

Ten opinions were under 1,000 words in

length (50%, one published and nine unpublished), and eight were under 500 words in

length (40%, all unpublished).

Fifteen of the appeals were fully briefed.

In 27 of the appeals no counseled brief was

filed, and in eight of the appeals a counseled

brief was filed only for one side.

There are citations to unpublished court

opinions in seven of these cases. In one case

the citations are only to opinions in related

cases; in six cases there are citations to unpublished opinions in unrelated cases. All of

the citations to unrelated unpublished opinions are in briefs, not opinions.

Three of the unrelated unpublished

opinions cited are by the court of appeals for

the Eleventh Circuit, eight are by courts of

appeals for other circuits, one is by a district

court in another circuit, and one is by New

York’s supreme court.

C11–1. Both the government and the defendant cited unpublished appellate opinions

in an unsuccessful appeal of a sentencing

designation of career offender and an order

of restitution, United States v. Martinez (11th

Cir. 02–14267, filed 08/05/2002, judgment

03/18/2004), resolved by unpublished opinion tabled at 99 Fed. Appx. 885, 2004 WL

625765 (published opinion withdrawn on the

defendant’s successful motion for rehearing).

 115. In 2002, 7,367 cases were filed in the court of

appeals for the Eleventh Circuit.
Citing Unpublished Opinions in Federal Appeals

263

The government’s appellee brief cites an

unpublished opinion by the court of appeals

for the Eleventh Circuit to support the statement that “as a panel of this Court has observed, an order of ‘immediate’ restitution

may help an inmate earn higher wages while

in prison through the Inmate Financial Responsibility Program.” The brief also includes

an unpublished opinion by the court of appeals for the Sixth Circuit in a string of nine

opinions—including eight published opinions by the courts of appeals for the Eleventh

Circuit, the Sixth Circuit, and two other circuits—supporting a statement that “A deferential standard of review for a district court’s

factual finding regarding prior offenses was

followed before Buford [v. United States, 532

U.S. 59 (2001),] and, of course, after it.”

The defendant’s reply brief cites four

unpublished federal appellate opinions.

These include the same unpublished Sixth

Circuit opinion in its rebuttal of the government’s string citation. The brief also cites an

unpublished opinion by the court of appeals

for the Fourth Circuit as authority for the

standard of review in determining whether

the defendant was a career offender. And the

brief includes two unpublished opinions (one

by the court of appeals for the Second Circuit

and one by the court of appeals for the

Fourth Circuit) with three published opinions

(one by the court of appeals for the Eleventh

Circuit and two by courts of appeals for other

circuits) to support a statement that “The

failure of the district court’s restitution order

in this case to comply with express statutory

requirements amounts to plain error.”

C11–2. In an unsuccessful appeal of a

conviction for illegal reentry and use of a

false passport, United States v. Urbaez (11th

Cir. 02–11675, filed 03/28/2002, judgment

09/18/2002), resolved by unpublished opinion tabled at 49 Fed. Appx. 289, 2002 WL

31174134, the government cited an unpublished opinion by the court of appeals for the

Eleventh Circuit and an unpublished opinion

by the court of appeals for the First Circuit.

The brief cites the unpublished Eleventh Circuit opinion to show that the court has already rejected an argument to overrule a

published Eleventh Circuit opinion. The brief

cites the unpublished First Circuit opinion in

stating that a published Eleventh Circuit

opinion adopted its reasoning.

C11–3. In a partially successful securities

appeal, Lockhart Holdings, Inc. v. Doyle Painting Contractors, Inc. (11th Cir. 02–10295, filed

01/17/2002, judgment 07/03/2002), resolved

by unpublished opinion tabled at 45 Fed.

Appx. 886, 2002 WL 1676368, both parties

cited an unpublished opinion by the court of

appeals for the Eleventh Circuit and an unpublished opinion by New York’s supreme

court.

The appellant’s brief states that the district court relied on the unpublished Eleventh

Circuit opinion, which partially affirmed and

partially reversed a published opinion by the

district court for the Middle District of Georgia, which the brief also cites. The appellee’s

brief states that in the unpublished opinion

the court affirmed the portion of the lower

court’s opinion adverse to the appellant’s argument.

The appellant’s brief states that “the

only cases that we have been able to locate on

point completely support [the appellant’s]

position.” The two opinions cited are a published New York appellate opinion and an

unpublished opinion by a New York trial

court. In a footnote, the appellee’s brief rebuts the appellant’s reliance on the unpublished opinion.

C11–4. The appellant cites an unpublished opinion in each of its briefs in an appeal dismissed by stipulation concerning an

award of attorney fees in an employment discrimination action, Bogle v. McClure (11th Cir.

02–14980, filed 09/12/2002, judgment

01/05/2004).

The defendants’ appellant brief twice

cites an unpublished opinion by the court of
Citing Unpublished Opinions in Federal Appeals

264

appeals for the Fourth Circuit. First the brief

includes the opinion with two Supreme

Court opinions in a string citation following a

Supreme Court quotation. In a parenthetical,

the unpublished opinion is quoted as stating,

“in measuring the degree of a plaintiff’s success, ‘only those changes in a defendant’s

conduct which are mandated by a judgment

. . . may be considered.’” On the following

page, the brief cites the same opinion and

parenthetically quotes it as stating that

“When injunctive relief is sought and denied,

‘there is even less occasion to permit a change

in conduct to serve as the basis for a fee

award under § 1988.’”

The defendant’s reply brief invites the

reader to compare three opinions justifying

reductions in attorney fee awards for unsuccessful claims—a published opinion by the

court of appeals for the Seventh Circuit, an

unpublished opinion by the district court for

the Eastern District of Louisiana, and a published opinion by the district court for the

District of Nevada.

C11–5. In an employer’s unsuccessful

appeal of an employment discrimination

judgment in favor of the plaintiff, and a partially successful cross-appeal by the plaintiff

of dismissed claims, Brewton v. Georgia Department of Public Safety (11th Cir. 02–14782,

filed 09/03/2002, judgment 07/17/2003), resolved by unpublished opinion tabled at 77

Fed. Appx. 505, 2003 WL 21804100, the defendant’s reply brief devotes a 10-line paragraph to a discussion of an unpublished

opinion by the court of appeals for the Ninth

Circuit in which the court “reversed an outcome-determinative sanction under Rule

37(c) as abuse of discretion.”

C11–6. In an unsuccessful appeal of a

drug sentence, United States v. Tolbert (11th

Cir. 02–11460, filed 04/11/2002, judgment

12/23/2002), resolved by unpublished opinion tabled at 55 Fed. Appx. 901, 2002 WL

31932873, the government’s appellee brief

cites an unpublished opinion by the court of

appeals for the Ninth Circuit to support an

argument for a three-level enhancement.

Individual Case Analyses

United States v. Feliz (11th Cir. 02–10050, filed

01/03/2002, judgment 06/27/2002).

Appeal from: Southern District of Florida.

What happened: Unsuccessful appeal of the denial of a downward departure in a sentence for

wrongful reentry.

Appellant’s brief: The defendant’s 3,278-word

appellant brief cites seven published opinions

(three by the Eleventh Circuit and four by other

circuits).

Appellee’s brief: The government’s 1,912-word

appellee brief cites four published Eleventh Circuit opinions.

Opinion: (2) The court’s unpublished 454-word

per curiam opinion, tabled at United States v. Feliz,

45 Fed. Appx. 878, 2002 WL 1424156 (11th Cir.

2002), cites two published Eleventh Circuit opinions. According to Westlaw (03/16/2005), the

court’s opinion has not been cited elsewhere.

Harper v. Hooks (11th Cir. 02–10230, filed

01/14/2002, judgment 03/12/2002).

Appeal from: Middle District of Georgia.

What happened: Civil rights appeal dismissed

for failure to file an appellant’s brief.

Opinion: (1) The court’s docketed judgment

cites no opinions.

Payne v. United States Department of Labor (11th

Cir. 02–10270, filed 01/15/2002, judgment

05/15/2002).

Appeal from: Northern District of Georgia.

What happened: Summary judgment reversed

because the pro se plaintiff was not given proper

notice.

Appellee’s brief: The government’s 6,744-word

appellee brief cites 28 published opinions (four by

the U.S. Supreme Court, six by the Eleventh Circuit,

116 10 by other circuits, and eight by districts

in other circuits) and one related case in the

Northern District of Georgia.

 

116. Opinions by the court of appeals for the Fifth

Circuit issued before October 1, 1981, and opinions by

Unit B of the court of appeals for the Fifth Circuit issued after September 30, 1981, are regarded as Eleventh

Circuit opinions. See Stein v. Reynolds Securities, Inc.,

667 F.2d 33, 34 (11th Cir. 1982) (Unit B decisions); Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.

1981) (pre-split decisions).
Citing Unpublished Opinions in Federal Appeals

265

Opinion: (2) The court’s unpublished 395-word

per curiam opinion, tabled at Payne v. USDOL, 37

Fed. App. 502, 2002 WL 1049318 (11th Cir. 2002),

cites three published Eleventh Circuit opinions.

According to Westlaw (03/17/2005), the court’s

opinion has not been cited elsewhere.

Lockhart Holdings, Inc. v. Doyle Painting

Contractors, Inc. (11th Cir. 02–10295, filed

01/17/2002, judgment 07/03/2002).

Appeal from: Middle District of Georgia.

What happened: Partially successful civil appeal

in a securities case. The court of appeals agreed

with the district court that most of the counterplaintiffs’ claims were time-barred, but not their

claim of promissory estoppel.

Appellants’ brief: The counter-plaintiffs’ 8,147-

word appellant brief cites 32 published opinions

(five by the Eleventh Circuit, one by another circuit, one by the Middle District of Georgia, two by

another Eleventh Circuit district, one by a district

in another circuit, five by Georgia’s supreme

court, 12 by Georgia’s court of appeals, one by

Mississippi’s supreme court, one by Ohio’s supreme court, one by Kentucky’s court of appeals,

one by Massachusetts’s appeals court, and one by

New York’s appellate division) and two unpublished opinions (one by the Eleventh Circuit and

one by New York’s supreme court).

The brief cites an unpublished Eleventh Circuit

partial affirmance and partial reversal of a published opinion by the Middle District of Georgia,

which the brief also cites. According to the brief,

the district court relied on the unpublished Eleventh Circuit opinion. (Pages 12–13.)

The brief cites two opinions to support the

statement, “By contrast, the only cases that we

have been able to locate on point completely support [the counter-plaintiffs’] position.” (Page 13.)

One opinion is a published New York appellate

opinion and the other is an unpublished New

York trial court opinion.

Appellee’s brief: The counter-defendant’s 7,136-

word appellee brief cites 14 published opinions

(one by the U.S. Supreme Court, three by the

Eleventh Circuit, one by another circuit, one by

the Middle District of Georgia, one by another

Eleventh Circuit district, three by Georgia’s supreme court, and four by Georgia’s court of appeals) and two unpublished opinions (one by the

Eleventh Circuit and one by New York’s supreme

court).

The appellee’s brief cites the same two unpublished opinions as does the appellants’ brief. The

brief cites the unpublished Eleventh Circuit opinion to support the statement that “This court, in

an unpublished opinion, affirmed [the] portion of

the District Court’s decision [in a published opinion adverse to the appellant’s argument].” (Page

20.) In a footnote, the appellee’s brief rebuts the

appellants’ reliance on the unpublished opinion

by New York’s supreme court. (Page 21, note 6.)

Appellant’s reply brief: The counter-plaintiffs’

2,672-word reply brief cites three published opinions (one by an Eleventh Circuit District, one by

Georgia’s supreme court, and one by Georgia’s

court of appeals).

Opinion: (2) The court’s unpublished 1,333-

word per curiam opinion, tabled at Lockhart Holdings v. Doyle Painting Contractors, 45 Fed. Appx.

886, 2002 WL 1676368 (11th Cir. 2002), cites nine

published opinions (two by the U.S. Supreme

Court, four by Georgia’s supreme court, and three

by Georgia’s court of appeals). According to

Westlaw (03/17/2005), the court’s opinion has not

been cited elsewhere.

United States v. Ayala (11th Cir. 02–10424, filed

01/24/2002, judgment 10/17/2002).

Appeal from: Southern District of Georgia.

What happened: Unsuccessful pro se appeal of a

refusal to reduce a criminal sentence.

Appellee’s brief: The government’s 955-word

appellee brief cites three published opinions (one

by the U.S. Supreme Court, one by the Eleventh

Circuit, and one by another circuit).

Opinion: (2) The court’s unpublished 490-word

per curiam opinion, tabled at United States v. Ayala, 52 Fed. Appx. 486, 2002 WL 31415610 (11th

Cir. 2002), cites two published Eleventh Circuit

opinions. According to Westlaw (03/17/2005), the

court’s opinion has not been cited elsewhere.

United States v. Tejeda (11th Cir. 02–10470, filed

01/28/2002, judgment 02/22/2002).

Appeal from: Southern District of Florida.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Crosskey v. Barnhart (11th Cir. 02–10527, filed

01/30/2002, judgment 05/02/2002).

Appeal from: Middle District of Alabama.

What happened: Social security disability benefits appeal remanded on the government’s motion.

Appellant’s brief: The appellant’s 2,606-word

brief cites 23 published opinions (one by the U.S.

Supreme Court, 21 by the Eleventh Circuit, and

one by the Middle District of Alabama).

Opinion: (1) The court’s docket judgment cites

no opinions.
Citing Unpublished Opinions in Federal Appeals

266

Anderson v. Alabama (11th Cir. 02–10607, filed

02/01/2002, judgment 04/19/2002).

Appeal from: Southern District of Alabama.

What happened: Pro se prisoner’s motion for a

certificate of appealability in a habeas corpus case

denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Oakwood Reinsurance Co. v. Texel Corp. (11th

Cir. 02–11063, filed 02/27/2002, judgment

04/15/2002).

Appeal from: Southern District of Florida.

What happened: Civil appeal dismissed for lack

of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

Gray v. Johnson (11th Cir. 02–11069, filed

02/27/2002, judgment 06/03/2002).

Appeal from: Northern District of Georgia.

What happened: Pro se prisoner’s motion for a

certificate of appealability in a habeas corpus case

denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Edinborough v. Protection One Alarm

Monitoring, Inc. (11th Cir. 02–11391, filed

03/15/2002, judgment 04/30/2002).

Appeal from: Northern District of Georgia.

What happened: Civil appeal dismissed for lack

of prosecution.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Kelley (11th Cir. 02–11417, filed

03/18/2002, judgment 11/20/2002).

Appeal from: Southern District of Florida.

What happened: Anders motion granted in an

unsuccessful appeal of a conviction for dealing in

marijuana plants.

Anders brief: The defendant’s counsel’s 1,439-

word Anders brief cites six published opinions

(one by the U.S. Supreme Court, two by the Eleventh Circuit, and three by other circuits).

Opinion: (2) The court’s unpublished 93-word

opinion “by the court,” tabled at United States v.

Kelley, 54 Fed. Appx. 690, 2002 WL 31719318 (11th

Cir. 2002), cites one U.S. Supreme Court opinion.

According to Westlaw (03/17/2005), the court’s

opinion has not been cited elsewhere.

United States v. Tolbert (11th Cir. 02–11460, filed

04/11/2002, judgment 12/23/2002).

Appeal from: Northern District of Florida.

What happened: Unsuccessful appeal of a drug

sentence.

Appellant’s brief: The defendant’s 4,980-word

appellant brief cites 12 published opinions (11 by

the Eleventh Circuit and one by another circuit)

and a related district court case.

Appellee’s brief: The government’s 8,492-word

appellee brief cited 32 published opinions (three

by the U.S. Supreme Court and 29 by the Eleventh

Circuit) and one unpublished opinion by another

circuit.

The government’s rebuttal to the defendant’s

second issue on appeal is an argument that “the

district court properly determined that the offense

involved a substantial risk of harm to human life

or the environment.” (Page 30.) After three pages

of argument, the first opinion cited is an unpublished opinion by the Ninth Circuit to support the

statement, “These factors warranted the three

level enhancement as provided for in section

2D1.1(b)(5) as the criteria identified in Application

Note 20 was [sic] clearly established.” (Page 33.)

Appellant’s reply brief: The defendant’s 1,273-

word reply brief cites five published opinions

(one by the U.S. Supreme Court, three by the

Eleventh Circuit, and one by another circuit).

Opinion: (2) The court’s unpublished 216-word

per curiam opinion, tabled at United States v. Tolbert, 55 Fed. Appx. 901, 2002 WL 31932873 (11th

Cir. 2002), cites no opinions. According to Westlaw (10/14/2004), the court’s opinion has not

been cited elsewhere.

Thompson v. Brown (11th Cir. 02–11653, filed

03/27/2002, judgment 05/15/2002).

Appeal from: Middle District of Georgia.

What happened: Pro se prisoner appeal dismissed for lack of jurisdiction.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Urbaez (11th Cir. 02–11675, filed

03/28/2002, judgment 09/18/2002).

Appeal from: Southern District of Florida.

What happened: Unsuccessful appeal of a conviction for illegal reentry and use of a false passport.

Appellant’s brief: The defendant’s 7,786-word

appellant brief cites 30 published opinions (15 by

the U.S. Supreme Court, 10 by the Eleventh Circuit, four by other circuits, and one by a district in

another circuit).

Appellee’s brief: The government’s 5,997-word

appellee brief cites 25 published opinions (seven

by the U.S. Supreme Court, 16 by the Eleventh

Circuit, and two by other circuits) and two un-
Citing Unpublished Opinions in Federal Appeals

267

published opinions (one by the Eleventh Circuit

and one by another circuit).

The brief cites an unpublished Eleventh Circuit

opinion to rebut an argument that a published

Eleventh Circuit opinion should be overruled: “A

panel of this Court recently rejected that argument when it held that ‘[t]he principle enunciated

in Carter was borrowed from Morissette . . . , and

was well-established when Peralt-Reyes was decided. Therefore, we are bound to follow PeraltReyes by concluding that the crime of attempted

reentry requires only general intent.’” (Page 17.)

The brief also cites an unpublished First Circuit opinion in stating that a published Eleventh

Circuit opinion adopted its reasoning: “Next, the

Court ‘found no merit’ in the distinction between

the crime of illegal reentry and attempted illegal

reentry for the purposes of the level of intent required, adopting the First Circuit’s reasoning in

United States v. Reyes-Medina, 53 F.3d 327 (1st Cir.

1995) (unpub.).” (Page 16.) The Court of Appeals

for the Eleventh Circuit did indeed state, “We find

Reyes-Medina persuasive and adopt its holding.”

United States v. Peralt-Reyes, 131 F.3d 956, 957 (11th

Cir. 1997).

Opinion: (2) The court’s unpublished 3,371-

word per curiam opinion, tabled at United States v.

Urbaez, 49 Fed. Appx. 289, 2002 WL 31174134

(11th Cir. 2002), cites 23 published opinions (five

by the U.S. Supreme Court and 18 by the Eleventh

Circuit). According to Westlaw (03/17/2005), the

court’s opinion has not been cited elsewhere. The

court denied rehearing en banc, United States v.

Urbaez, 54 Fed. Appx. 688, 2002 WL 31652587

(11th Cir. 2002) (table).

Humphrey v. United States (11th Cir. 02–11683,

filed 03/28/2002, judgment 06/03/2002).

Appeal from: Middle District of Georgia.

What happened: Pro se prisoner appeal dismissed for lack of jurisdiction.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Griffin (11th Cir. 02–11806, filed

04/03/2002, judgment 08/20/2002).

Appeal from: Northern District of Florida.

What happened: Pro se criminal appeal dismissed for failure to pay the filing fees.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Johnson (11th Cir. 02–12043,

filed 04/15/2002, judgment 12/17/2002).

Appeal from: Southern District of Alabama.

What happened: Unsuccessful appeal of a district judge’s refusal to recuse himself from a supervised release revocation case, where the defendant had tested positive for alcohol and cocaine. The court ruled that the judge did not abuse

his discretion in keeping the case after rescinding

a subpoena for mitigating evidence following ex

parte communications with probation officers.

Related cases: United States v. Thomas (11th Cir.

93–6708, filed 08/23/1993, judgment 07/08/1994)

(unsuccessful criminal appeal), Thomas v. United

States (11th Cir. 02–13614, filed 07/01/2002,

judgment 09/19/2002) (pro se motion for certificate of appealability denied).

Appellant’s brief: The defendant’s 4,218-word

appellant brief cites 18 published opinions (four

by the U.S. Supreme Court, five by the Eleventh

Circuit, and nine by other circuits).

Appellee’s brief: The government’s 3,356-word

appellee brief cites 11 published opinions (two by

the U.S. Supreme Court and nine by the Eleventh

Circuit).

Opinion: (2) The court’s unpublished 827-word

per curiam opinion, tabled at United States v. Johnson, 55 Fed. Appx. 902, 2002 WL 31032046 (11th

Cir. 2002), cites 10 published opinions (eight by

the Eleventh Circuit and two by other circuits).

According to Westlaw (03/16/2005), the court’s

opinion has not been cited elsewhere.

Blankenship v. United States (11th Cir. 02–12297,

filed 04/26/2002, judgment 11/26/2002).

Appeal from: Northern District of Florida.

What happened: Pro se motion for a certificate of

appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Bilzerian v. Securities and Exchange Commission

(11th Cir. 02–12412, filed 04/30/2002, judgment

08/21/2003).

Appeal from: Middle District of Florida.

What happened: Unsuccessful pro se bankruptcy appeal by a debtor trying to use bankruptcy protection to avoid a civil action by the

Securities and Exchange Commission following a

criminal conviction for securities fraud.

Appellee’s brief: The receiver’s 10,878-word appellee brief cites 55 published opinions (five by

the U.S. Supreme Court; 10 by the Eleventh Circuit, including one in related litigation; 16 by

other circuits, including two in related litigation;

one by another circuit’s bankruptcy appeal panel;

three district court opinions by the Middle District

of Florida; four bankruptcy court opinions by the

Middle District of Florida, including two in related litigation; one bankruptcy court opinion by

another Eleventh Circuit district; five district
Citing Unpublished Opinions in Federal Appeals

268

court opinions by districts in other circuits, including two in related litigation; and 10 bankruptcy court opinions by districts in other circuits), three unpublished opinions in related litigation (one by the Middle District of Florida and

two by a district in another circuit), and one treatise.

Appellee’s brief: The Securities and Exchange

Commission’s 5,384-word appellee brief cites 20

published opinions (four by the Eleventh Circuit,

including one in related litigation; nine by other

circuits, including two in related litigation; one by

the district court in the Middle District of Florida

in related litigation; one by the bankruptcy court

in the Middle District of Florida in related litigation; three by district courts in other circuits in

related litigation; and two by bankruptcy courts in

other circuits), two unpublished opinions by district courts in other circuits in related litigation,

and one treatise.

Opinion: (2) The court’s unpublished 227-word

per curiam opinion, tabled at Bilzerian v. SEC, 82

Fed. Appx. 213, 2003 WL 22075379 (11th Cir.

2003), cites no opinions. According to Westlaw

(03/16/2005), the court’s opinion has not been

cited elsewhere.

United States v. Wilson (11th Cir. 02–12484, filed

05/02/2002, judgment 05/24/2002).

Appeal from: Southern District of Georgia.

What happened: Criminal appeal voluntarily

dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Rowland v. United States (11th Cir. 02–12572,

filed 05/08/2002, judgment 06/07/2002).

Appeal from: Northern District of Alabama.

What happened: Pro se prisoner appeal dismissed for failure to pay filing fees.

Opinion: (1) The court’s docket judgment cites

no opinions.

Casimir v. United States Attorney General (11th

Cir. 02–12664, filed 05/13/2002, judgment

07/16/2003).

Appeal from: Board of Immigration Appeals.

What happened: Unsuccessful immigration appeal.

Appellant’s brief: The immigrant’s 3,107-word

appellant brief cites eight published court opinions (three by the U.S. Supreme Court and five by

circuits other than the Eleventh) and 11 published

opinions by the Board of Immigration Appeals.

Appellee’s brief: The government’s 10,605-word

appellee brief cites 65 published opinions (14 by

the U.S. Supreme Court, 13 by the Eleventh Circuit, and 38 by other circuits) and three published

opinions by the Board of Immigration Appeals.

Opinion: (2) The court’s unpublished 1,431-

word per curiam opinion, tabled at Casimir v.

United States Attorney General, 77 Fed. Appx. 504,

2003 WL 21803727 (11th Cir. 2003), cites 10 published court opinions (one by the U.S. Supreme

Court, six by the Eleventh Circuit, and three by

other circuits) and two published opinions by the

Board of Immigration Appeals. According to

Westlaw (03/18/2005), the court’s opinion has not

been cited elsewhere.

In re Barthmaier (11th Cir. 02–12811, filed

05/20/2002, judgment 06/14/2002).

Appeal from: Middle District of Florida.

What happened: Application for a successive

habeas corpus petition denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Lochmere Development Group v. Eiger Fund (11th

Cir. 02–12865, filed 05/22/2002, judgment

03/25/2003).

Appeal from: Middle District of Florida.

What happened: Civil appeal mutually dismissed in business litigation concerning a Florida

residential real estate development.

Appellant’s brief: The plaintiffs’ 11,019-word

appellant brief cites 39 published opinions (13 by

the Eleventh Circuit, one by another circuit, two

by the Middle District of Florida, two by districts

in other circuits, five by Florida’s supreme court,

and 16 by Florida’s district courts of appeal), one

Web page, and the Restatement (Second) of Torts.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Pickett (11th Cir. 02–13299, filed

06/17/2002, judgment 01/22/2003).

Appeal from: Middle District of Florida.

What happened: Unsuccessful appeal of the

revocation of supervised release of a physician

imprisoned for Medicare fraud on a finding that

his putative employment was a sham.

Related cases: United States v. Pritchett (11th Cir.

96–7087, filed 11/12/1996, judgment 09/18/1997),

United States v. Pickett (11th Cir. 97–2125, filed

02/06/1997, judgment 07/22/1998), Pickett v.

United States (11th Cir. 03–10836, filed

02/18/2003, judgment 05/12/2003) (certificate of

appealability denied), United States v. Pickett (11th

Cir. 03–13427, filed 07/07/2003, judgment

11/18/2003) (appeal voluntarily dismissed).

Appellant’s brief: The defendant’s 1,807-word

appellant brief cites one published Eleventh Circuit opinion.
Citing Unpublished Opinions in Federal Appeals

269

Appellee’s brief: The government’s 2,265-word

appellee brief cites five published opinions (one

by the U.S. Supreme Court and four by the Eleventh Circuit).

Appellant’s reply brief: The defendant’s 591-

word reply brief cites one published Eleventh Circuit opinion.

Opinion: (2) The court’s unpublished 634-word

per curiam opinion, tabled at United States v. Pickett, 58 Fed. Appx. 836, 2003 WL 221755 (11th Cir.

2003), cites two published Eleventh Circuit opinions. According to Westlaw (03/16/2005), the

court’s opinion has not been cited elsewhere.

United States v. Caviness (11th Cir. 02–13782,

filed 07/11/2002, judgment 12/23/2003).

Appeal from: Southern District of Florida.

What happened: Unsuccessful appeal of the district court’s failure to reduce a criminal sentence

based on amendments to sentencing guidelines.

Related cases: United States v. Caviness (11th Cir.

90–5754, filed 09/12/1990, judgment 12/08/1992)

(criminal appeal), Powell v. United States (11th Cir.

94–5229, filed 11/25/1994, judgment 07/16/1996)

(prisoner’s motion to vacate sentence).

Appellant’s brief: The defendant’s 2,794-word

appellant brief cites 11 published opinions (one by

the U.S. Supreme Court, seven by the Eleventh

Circuit, and three by other circuits).

Appellee’s brief: The government’s 2,760-word

appellee brief cites 11 published opinions (one by

the U.S. Supreme Court and 10 by the Eleventh

Circuit).

Appellant’s reply brief: The defendant’s 1,031-

word reply brief cites 10 published opinions (one

by the U.S. Supreme Court, six by the Eleventh

Circuit, and three by other circuits).

Opinion: (2) The court’s unpublished 437-word

per curiam opinion, tabled at United States v. Caviness, 90 Fed. Appx. 381, 2003 WL 23185907 (11th

Cir. 2003), cites two published Eleventh Circuit

opinions. According to Westlaw (03/16/2005), the

court’s opinion has not been cited elsewhere.

Smiley v. United States (11th Cir. 02–13901, filed

07/18/2002, judgment 04/30/2003).

Appeal from: Middle District of Alabama.

What happened: Pro se motion for certificate of

appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Simon v. United States Attorney General (11th

Cir. 02–13924, filed 07/18/2002, judgment

01/03/2003).

Appeal from: Southern District of Florida.

What happened: Deportation appeal dismissed

for failure to file an appellant brief.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Oliver (11th Cir. 02–14223, filed

08/02/2002, judgment 03/21/2003).

Appeal from: Northern District of Georgia.

What happened: Unsuccessful appeal of a drug

conviction and sentence.

Appellant’s brief: The defendant’s 5,546-word

appellant brief cites 22 published opinions (one by

the U.S. Supreme Court, 19 by the Eleventh Circuit, one by another circuit, and one by an Eleventh Circuit district).

Appellee’s brief: The government’s 9,219-word

appellee brief cites 35 published opinions (one by

the U.S. Supreme Court and 34 by the Eleventh

Circuit) and one treatise.

Opinion: (2) The court’s unpublished 3,871-

word per curiam opinion, tabled at United States v.

Oliver, 64 Fed. Appx. 742, 2003 WL 1701648 (11th

Cir. 2003), cites 15 published Eleventh Circuit

opinions. According to Westlaw (03/18/2005), the

court’s opinion has not been cited elsewhere.

United States v. Martinez (11th Cir. 02–14267,

filed 08/05/2002, judgment 03/18/2004).

Appeal from: Southern District of Florida.

What happened: Unsuccessful appeal of a sentencing designation of career offender and an order of restitution on the defendant’s motion for

rehearing.

Appellant’s brief: The defendant’s 4,475-word

appellant brief cites 20 published opinions (one by

the U.S. Supreme Court, 11 by the Eleventh Circuit, four by other circuits, one by Florida’s supreme court, and three by Florida’s district courts

of appeal).

Appellee’s brief: The government’s 6,477-word

appellee brief cites 21 published opinions (four by

the U.S. Supreme Court, 11 by the Eleventh Circuit, and six by other circuits) and two unpublished opinions (one by the Eleventh Circuit and

one by another circuit).

The government’s brief cites an unpublished

Eleventh Circuit opinion to support the statement

that “as a panel of this Court has observed, an

order of ‘immediate’ restitution may help an inmate earn higher wages while in prison through

the Inmate Financial Responsibility Program.”

(Page 25.)

The brief also includes an unpublished Sixth

Circuit opinion in a string of nine citations supporting the statement, “A deferential standard of

review for a district court’s factual finding regard-
Citing Unpublished Opinions in Federal Appeals

270

ing prior offenses was followed before Buford [v.

United States, 532 U.S. 59 (2001),] and, of course,

after it.” (Page 19.) The other eight citations in the

string are published appellate opinions—three by

the Eleventh Circuit, three by the Fifth Circuit,

one by the Sixth Circuit, and one by the Seventh

Circuit.

Appellant’s reply brief: The defendant’s 4,341-

word reply brief cites 27 published opinions (four

by the U.S. Supreme Court, 13 by the Eleventh

Circuit, eight by other circuits, one by Florida’s

supreme court, and one by Florida’s district court

of appeal) and four unpublished opinions by

other circuits.

The reply brief cites the same unpublished

Sixth Circuit opinion as the appellee brief does in

its rebuttal of the government’s string citation:

“The government has further cited a number of

Fifth, Sixth and Seventh Circuit cases to support

its contention that a deferential standard of review applies here. Those decisions do not confirm

application of such a standard, however, except as

to those challenges involving a claim of functional

consolidation; moreover, none of those cases involves the circumstance presented here, where

state law requires, as a matter of course, a consolidated sentencing procedure, pursuant to a

single guidelines scoresheet, for all cases pending

in a single trial court against the defendant.”

(Page 7, citation omitted.)

The brief cites an unpublished Fourth Circuit

opinion to support the statement that “for purposes of career offender designation, whether

prior federal cases were consolidated for sentencing under federal procedural rule is a ‘purely legal question’ subject to de novo review; by contrast, clear error review applies to determination

of whether prior offenses were consolidated because they were part of a ‘common scheme or

plan.’” (Page 4.)

The brief includes two unpublished opinions—one by the Second Circuit and one by the

Fourth Circuit—among five opinions cited to support the statement, “The failure of the district

court’s restitution order in this case to comply

with express statutory requirements amounts to

plain error.” (Page 16.) The other three opinions

cited—by the Eleventh, Second, and Fifth Circuits—are published.

Opinion: (2) Initially, the court published a

1,749-word per curiam opinion for publication,

United States v. Martinez, 320 F.3d 1285, 2003 WL

257139 (11th Cir. 2003) (nine headnotes) (withdrawn), citing nine published opinions (one by

the U.S. Supreme Court, five by the Eleventh Circuit, two by other circuits, and one by Florida’s

supreme court). According to Westlaw

(12/02/2004), the court’s withdrawn opinion was

cited by one published Eleventh Circuit opinion,

three secondary sources, and nine appellate briefs

in eight Eleventh Circuit cases.

The court’s unpublished 123-word per curiam

opinion on rehearing, tabled at United States v.

Martinez, 99 Fed. Appx. 885, 2004 WL 625765 (11th

Cir. 2004), cites no opinions. (Although the opinion contains 123 words, the text of the opinion is

just the word “Affirmed.” The rest of the opinion

is the designation “per curiam,” a citation to an

Eleventh Circuit rule, and quoted text from the

rule in a footnote.) According to Westlaw

(10/14/2004), the court’s opinion has not been

cited elsewhere.

Murray v. Wiley (11th Cir. 02–14477, filed

08/16/2002, judgment 02/04/2003).

Appeal from: Northern District of Georgia.

What happened: Pro se habeas corpus appeal

dismissed as frivolous.

Opinion: (1) The court’s docket judgment cites

no opinions.

Brewton v. Georgia Department of Public Safety

(11th Cir. 02–14782, filed 09/03/2002, judgment

07/17/2003).

Appeal from: Southern District of Georgia.

What happened: Unsuccessful appeal by an employer of an employment discrimination judgment in favor of the plaintiff, and a partially successful cross-appeal by the plaintiff of dismissed

claims. The appeal largely concerned a discovery

sanction under Federal Rule of Civil Procedure

37(c) in which the court granted plaintiff partial

summary judgment upon the exclusion of testimony from a witness not properly disclosed. A

dissenting appellate judge opined that the sanction was too stiff under the circumstances.

Related case: Brewton v. Georgia Department of

Public Safety (11th Cir. 02–14999, filed 09/13/2002,

judgment 07/17/2003) (cross-appeal).

Appellant’s brief: The Department of Public

Safety’s 14,978-word appellant brief cites 67 published opinions (eight by the U.S. Supreme Court,

24 by the Eleventh Circuit, 17 by other circuits,

two by the Southern District of Georgia, one by

another Eleventh Circuit district, 12 by districts in

other circuits, and three by Georgia’s court of appeals) and one treatise.

Appellee’s brief: The plaintiff’s 13,974-word appellee and cross-appellant brief cites 118 published opinions (21 by the U.S. Supreme Court, 57

by the Eleventh Circuit, 28 by other circuits, eight
Citing Unpublished Opinions in Federal Appeals

271

by districts in other circuits, and four by Georgia’s

court of appeals), two treatises, one dictionary,

and the Restatement (Second) of Agency.

Appellant’s reply brief: The department’s 13,903-

word reply brief cites 64 published opinions

(seven by the U.S. Supreme Court, 23 by the Eleventh Circuit, 25 by other circuits, and nine by districts in other circuits) and one unpublished opinion by another circuit.

The brief devotes a 10-line paragraph to a discussion of an unpublished Ninth Circuit opinion

in which the court “reversed an outcomedeterminative sanction under Rule 37(c) as abuse

of discretion.” (Pages 22–23.)

Cross-appellant’s reply brief: The plaintiff’s 6,885-

word reply brief cites 64 published opinions (13

by the U.S. Supreme Court, 35 by the Eleventh

Circuit, 13 by other circuits, one by the Southern

District of Georgia, and two by districts in other

circuits), one treatise, and Black’s Law Dictionary.

Opinion: (2) The court’s unpublished 2,799-

word per curiam opinion and partial dissent, tabled at Brewton v. Georgia Department of Public

Safety, 77 Fed. App. 505, 2003 WL 21804100 (11th

Cir. 2003), cites 19 published opinions (four by the

U.S. Supreme Court, 13 by the Eleventh Circuit,

and two by other circuits). According to Westlaw

(03/16/2005), the court’s opinion has not been

cited elsewhere.

Bedford v. Secretary (11th Cir. 02–14896, filed

09/09/2002, judgment 10/15/2002).

Appeal from: Southern District of Florida.

What happened: Pro se prisoner’s motion for a

certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Jones v. Bellsouth Business Systems (11th Cir. 02–

14907, filed 09/09/2002, judgment 11/29/2002).

Appeal from: Northern District of Alabama.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

In re Bryan (11th Cir. 02–14978, filed 09/12/2002,

judgment 04/21/2003).

Appeal from: Northern District of Georgia.

What happened: Unsuccessful pro se appeal of

fees awarded to the appellant’s attorneys in an

adversarial tax proceeding in the bankruptcy

court.

Appellee’s brief: The defendant’s 4,629-word

appellee brief cites 16 published opinions (four by

the U.S. Supreme Court, eight by the Eleventh

Circuit, two by districts in other circuits, and two

by bankruptcy courts in other circuits).

Opinion: (2) The court’s unpublished 2,025-

word per curiam opinion, tabled at Bryan v. Kane,

67 Fed. Appx. 583, 2003 WL 21068341 (11th Cir.

2003), cites seven published Eleventh Circuit

opinions. According to Westlaw (03/18/2005), the

court’s opinion has not been cited elsewhere.

Bogle v. McClure (11th Cir. 02–14980, filed

09/12/2002, judgment 01/05/2004).

Appeal from: Northern District of Georgia.

What happened: Civil defendants’ appeal of an

award of attorney fees in an employment discrimination action dismissed by stipulation. The

defendants argued that the award should have

been reduced because the court denied the plaintiffs’ reinstatement.

Related case: The defendants unsuccessfully

appealed the judgment in favor of the plaintiffs

and other issues concerning attorney fees separately, Bogle v. McClure (11th Cir. 02-13213, filed

06/11/2002, judgment 06/06/2003), resolved by

published opinion at Bogle v. McClure, 332 F.3d

1347 (11th Cir. 2003).

Appellant’s brief: The defendants’ 5,235-word

appellant brief cites 22 published opinions (10 by

the U.S. Supreme Court, 11 by the Eleventh Circuit, and one by another circuit), one unpublished

opinion by another circuit, and the related appeal.

The brief twice cites the unpublished opinion

by the Fourth Circuit. It includes the opinion in a

string of three citations—the other two are Supreme Court opinions—headed by “see also” following a Supreme Court quotation. In a parenthetical, the unpublished opinion is quoted as

stating, “in measuring the degree of a plaintiff’s

success, ‘only those changes in a defendant’s conduct which are mandated by a judgment . . . may

be considered.’” (Page 17.) On the following page

of the brief, the same opinion is cited with a “see

also” introduction and parenthetically quoted as

stating, “When injunctive relief is sought and denied, ‘there is even less occasion to permit a

change in conduct to serve as the basis for a fee

award under § 1988.’” (Page 18.)

Appellee’s brief: The plaintiffs’ 2,083-word appellee brief cites nine published opinions (two by

the U.S. Supreme Court, six by the Eleventh Circuit, and one by the Northern District of Georgia).

Appellant’s reply brief: The defendants’ 1,961-

word reply brief cites 11 published opinions (two

by the U.S. Supreme Court, four by the Eleventh

Circuit, three by other circuits, and two by districts in other circuits) and one unpublished opinion by a district in another circuit.
Citing Unpublished Opinions in Federal Appeals

272

The brief states, “The Supreme Court standard

used by the Jaimes court [citing Jaimes v. Toledo

Metropolitan Housing Authority, 715 F. Supp. 843

(N.D. Ohio 1989)], which resulted in a reduction

in the award of attorneys’ fees, is also appropriate

in this case” (page 3), and invites the reader to

“compare” three opinions justifying reductions in

attorney fee awards for unsuccessful claims—a

published Seventh Circuit opinion, an unpublished opinion by the Eastern District of Louisiana, and a published opinion by the District of

Nevada.

Opinion: (1) The court’s docket judgment cites

no opinions.

Mims v. Hicks (11th Cir. 02–15094, filed

09/19/2002, judgment 10/21/2002).

Appeal from: Southern District of Georgia.

What happened: Pro se prisoner petition dismissed for lack of jurisdiction.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Anderson (11th Cir. 02–15233,

filed 09/25/2002, judgment 04/25/2003).

Appeal from: Southern District of Florida.

What happened: Unsuccessful appeal of an enhancement to an illegal reentry conviction for

prior conviction of a felony. The court held that a

plea of nolo contendere followed by a withheld adjudication of guilt satisfied the requirements for

the enhancement, because the imposition of a sentence of time served qualified as punishment for

the felony.

Appellant’s brief: The defendant’s 2,109-word

appellant brief cites seven published Eleventh

Circuit opinions.

Appellee’s brief: The government’s 1,574-word

appellee brief cites five published opinions (one

by the U.S. Supreme Court, two by the Eleventh

Circuit, and two by other circuits).

Opinion: (3) The court’s published 679-word

per curiam opinion, United States v. Anderson, 328

F.3d 1326 (11th Cir. 2003) (five headnotes), cites

five published opinions (four by the Eleventh Circuit and one by another circuit). According to

Westlaw (03/18/2005), the court’s opinion has

been cited in one published Eleventh Circuit opinion, one published opinion by another circuit, one

secondary source, and nine appellate briefs in five

cases (three in the Eleventh Circuit and two in

other circuits).

Graves v. United States (11th Cir. 02–15495, filed

10/07/2002, judgment 01/10/2003).

Appeal from: Northern District of Georgia.

What happened: Motion for a certificate of appealability dismissed for failure to pay the filing

fees.

Opinion: (1) The court’s docket judgment cites

no opinions.

Rivera v. Florida State Prison (11th Cir. 02–

15715, filed 10/18/2002, judgment 01/31/2003).

Appeal from: Middle District of Florida.

What happened: Pro se motion for a certificate of

appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Clemmons v. Barbour (11th Cir. 02–15827, filed

10/24/2002, judgment 07/16/2003).

Appeal from: Middle District of Alabama.

What happened: Pro se prisoner appeal voluntarily dismissed by stipulation.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Jackson (11th Cir. 02–15963, filed

10/30/2002, judgment 07/31/2003).

Appeal from: Middle District of Alabama.

What happened: Unsuccessful appeal of a criminal conviction for being a felon in possession of a

firearm.

Appellant’s brief: The defendant’s 3,032-word

appellant brief cites eight published opinions (two

by the U.S. Supreme Court and six by the Eleventh Circuit).

Appellee’s brief: The government’s 1,978-word

appellee brief cites five published Eleventh Circuit

opinions.

Opinion: (2) The court’s unpublished 1,273-

word per curiam opinion, tabled at United States v.

Jackson, 77 Fed. Appx. 508, 2003 WL 22410533

(11th Cir. 2003), cites 14 published opinions (six

by the U.S. Supreme Court and eight by the Eleventh Circuit). According to Westlaw

(03/16/2005), the court’s opinion has not been

cited elsewhere.

United States v. Kirk (11th Cir. 02–16132, filed

11/07/2002, judgment 07/08/2003).

Appeal from: Middle District of Georgia.

What happened: Unsuccessful appeal of a firearm and fraudulent check conviction.

Appellant’s brief: The defendant’s 1,581-word

appellant brief cites two published opinions (one

by the U.S. Supreme Court and one by the Eleventh Circuit).

Appellee’s brief: The government’s 3,447-word

appellee brief cites nine published opinions (three

by the U.S. Supreme Court, four by the Eleventh

Circuit, and two by Georgia’s court of appeals).
Citing Unpublished Opinions in Federal Appeals

273

Opinion: (2) The court’s unpublished 2,182-

word per curiam opinion, tabled at United States v.

Kirk, 76 Fed. Appx. 283, 2003 WL 21685594 (11th

Cir. 2003), cites 11 published opinions (three by

the U.S. Supreme Court, seven by the Eleventh

Circuit, and one by another circuit). According to

Westlaw (03/18/2005), the court’s opinion has not

been cited elsewhere.

United States v. El-Amin (11th Cir. 02–16380,

filed 11/22/2002, judgment 02/02/2004).

Appeal from: Middle District of Florida.

What happened: On a certificate of appealability,

unsuccessful pro se appeal of the district court’s

refusal to allow a criminal defendant to withdraw

a guilty plea.

Related cases: The selected appeal was decided

by the same opinion as United States v. El-Amin

(11th Cir. 02–16378, filed 11/22/2002, judgment

02/02/2004), tabled at 92 Fed. Appx. 780 (unsuccessful pro se criminal appeal), which was briefed

separately.

Appellee’s brief: The government’s 2,393-word

appellee brief cites 10 published opinions (four by

the U.S. Supreme Court, five by the Eleventh Circuit, and one by another circuit).

Opinion: (2) The court’s unpublished 2,763-

word per curiam opinion, tabled at United States v.

El-Amin, 92 Fed. Appx. 780, 2004 WL 298385 (11th

Cir. 2004), cites 10 published opinions (one by the

U.S. Supreme Court, four by the Eleventh Circuit,

and five by other circuits). According to Westlaw

(03/18/2005), the court’s opinion has not been

cited elsewhere.

In re Cascella (11th Cir. 02–16550, filed

12/04/2002, judgment 02/07/2003).

Appeal from: Middle District of Florida.

What happened: Pro se petition for a writ of

mandamus dismissed.

Opinion: (1) The court’s docket judgment cites

no opinions.

Ellis v. United States (11th Cir. 02–16552, filed

12/04/2002, judgment 03/12/2003).

Appeal from: Middle District of Alabama.

What happened: Pro se motion for a certificate of

appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Proenza-Sanfiel v. Crosby (11th Cir. 02–16606,

filed 12/06/2002, judgment 03/21/2003).

Appeal from: Middle District of Florida.

What happened: Pro se motion for a certificate of

appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

Timms v. United States (11th Cir. 02–16721, filed

12/12/2002, judgment 03/27/2003).

Appeal from: Southern District of Florida.

What happened: Certificate of appealability denied.

Opinion: (1) The court’s docket judgment cites

no opinions.

United States v. Jackson (11th Cir. 02–16828, filed

12/18/2002, judgment 01/06/2003).

Appeal from: Middle District of Alabama.

What happened: Criminal appeal voluntarily

dismissed without prejudice.

Opinion: (1) The court’s docket judgment cites

no opinions.

12. District of Columbia Circuit117

Citation to unrelated unpublished opinions,

proscribed before 2002, is now permitted.

118

But unpublished district court opinions may

not be cited in unrelated cases, and unpublished opinions of other courts of appeals

may only be cited as permitted in briefs to

those courts.

119

Of the 50 cases randomly selected, 30 are

appeals from the district court for the District

of Columbia, nine are appeals from the Federal Energy Regulatory Commission, three

are appeals from the National Labor Relations Board, two are appeals from the Environmental Protection Agency, two are appeals from the Federal Aviation Administra-

 

117. Docket sheets and disposition orders are on

PACER. Published opinions and most unpublished

opinions are on Westlaw. (Of the 21 cases in this sample

resolved by unpublished opinions, the opinions are on

Westlaw for 17.) Published opinions are also on the

court’s website. A few briefs are on Westlaw. (Of the 21

cases in this sample with counseled briefs, all briefs are

on Westlaw for one case and one brief is on Westlaw for

another case.)

118. D.C. Cir. L.R. 28(c)(1). See id. at 28(c)(1)(B) (“All

unpublished orders or judgments of this court, including explanatory memoranda (but not including sealed

opinions) entered on or after January 1, 2002, may be

cited as precedent.”).

119. Id. at 28(c)(2).
Citing Unpublished Opinions in Federal Appeals

274

tion, two are appeals from the Federal Communications Commission, one is an appeal

from the Occupational Safety and Health Review Commission, and one is an appeal from

the Surface Transportation Board.

120

The publication rate in this sample will

be from 26% to 30% once all the cases are resolved. Thirteen of the cases were resolved by

published opinions (11 signed, including two

with concurrences, and two per curiam), 21

were resolved by unpublished opinions (including eight judgments, of which six are

designated per curiam and all but one of

which are published in the Federal Appendix,

and 13 per curiam orders, of which one is

published in the Federal Appendix), 14 were

resolved by clerk’s orders,

121 and two cases

have not yet been resolved.

Published opinions averaged 4,931

words in length, ranging from 2,755 to 10,001.

Unpublished opinions averaged 261 words in

length, ranging from 21 to 632. Twenty-one

opinions were under 1,000 words in length

(62%, all of the unpublished opinions and

none of the published opinions), and 20 of

them were under 500 words in length (59%).

Nineteen of the cases were fully briefed.

In 29 of the appeals no counseled brief was

filed, and in two of the appeals a counseled

brief was filed only for one side. The two

cases not yet resolved were held in abeyance

before briefing, and briefs may or may not

ultimately be filed in those cases.

There are citations to unpublished court

opinions in eight of the cases. In three cases

the citations are only to opinions in related

 

120. In 2002, 1,105 cases were filed in the court of

appeals for the District of Columbia Circuit.

121. These are short orders resolving the cases, orders that do not bear the names of the judges to whom

the cases have been assigned. We regard these as

equivalent to docket judgments in other circuits. Unpublished per curiam orders and judgments, on the

other hand, may be as short as clerk’s orders, but they

bear the names of the judges on the panel to which the

cases are assigned. We regard these as equivalent to

unpublished opinions in other circuits.

cases; in five cases there are citations to unpublished opinions in unrelated cases. In one

case the court cited an unrelated unpublished

order; in four other cases only the parties

cited unrelated unpublished opinions.

The unpublished order cited by the

court is an unpublished consent decree filed

in the district court for the District of Columbia. Of the unrelated unpublished opinions

cited only by the parties in these cases, one is

by the court of appeals for the District of Columbia Circuit, two are by courts of appeals

for other circuits, one is by the district court

for the District of Columbia, and two are by

district courts in other circuits.

CDC–1. The court cited an unpublished

consent decree filed in the district court for

the District of Columbia in a successful petition by an environmental organization to

have the Environmental Protection Agency

reconsider regulations concerning “small

municipal waste combustion units,” New

York Public Interest Research Group v. Environmental Protection Agency (D.C. Cir. 02–1299,

filed 09/24/2002, judgment 02/24/2004), resolved by published opinion at Northeast

Maryland Waste Disposal Authority v. Environmental Protection Agency, 358 F.3d 936 (D.C.

Cir. 2004). The consent decree apparently requires the Environmental Protection Agency

to promulgate “standards to regulate units

with a design capacity of 35 tpd or less” by

November 30, 2005.

CDC–2. The appellant cited an unpublished order by the court of appeals for the

District of Columbia Circuit in an unsuccessful appeal of the enforcement of an airline’s

System Board of Adjustment ruling in favor

of an airline pilot who left an aircraft full of

passengers rather than begin a flight that

would give him a work shift in excess of 16

hours, Pan American Airways Corp. v. Air Line

Pilots Association (D.C. Cir. 02–7084, filed

07/18/2002, judgment 05/05/2003), resolved

by unpublished per curiam judgment at 62

Fed. Appx. 356, 2003 WL 21025273. The un-
Citing Unpublished Opinions in Federal Appeals

275

published order stayed enforcement of an

administrative interpretation of the 16-hour

rule. The flight at issue in the selected case

occurred 15 months before the court of appeals finally determined the agency’s interpretation—an interpretation that the union

favored—was correct in a published opinion

also cited in the appellant’s brief.

CDC–3. Both parties cited unpublished

opinions in an initially unsuccessful appeal of

the district court’s judgment that federal

courts did not have jurisdiction over alien

prisoners held at Guantanamo Bay, Cuba,

Habib v. Bush (D.C. Cir. 02–5284, filed

09/11/2002, judgment 07/19/2004), initially

resolved by published opinion at Al Odah v.

United States, 321 F.3d 1134 (D.C. Cir. 2003).

The Supreme Court vacated the court of appeals’ decision, Rasul v. Bush, 124 S. Ct. 2686

(2004), so the court of appeals remanded the

case to the district court, Al Odah v. United

States, 1003 Fed. Appx. 676, 2004 WL 1613572

(D.C. Cir. 2004).

The habeas corpus petitioners cited an

unpublished opinion by the court of appeals

for the Fourth Circuit with a published opinion by the court of appeals for the Fourth Circuit and a published opinion by the district

court for the Eastern District of Virginia in a

footnote supporting a statement that “The

United States prosecutes crimes committed in

Guantanamo—including crimes committed

by aliens—because the enclave is ‘within its

territorial jurisdiction.’” Their reply brief cites

the same Fourth Circuit opinions to support a

statement that “The United States, of course,

has long taken the position that Guantanamo

Bay is within the ‘territory’ and ‘territorial

jurisdiction’ of the United States. Under the

terms of the lease, Guantanamo Bay is subject

to the ‘complete jurisdiction and control’ of

the United States. [Citation.] When it suits

them, the federal government relies upon this

language for its contention that crimes committed on Guantanamo Bay are ‘within its

territorial jurisdiction.’”

The petitioners’ opening brief also cites

an unpublished opinion by the district court

for the Southern District of New York with

published opinions by the court of appeals

for the Ninth Circuit and the district courts

for the District of Massachusetts, the Southern District of Florida, and the Northern District of California in a footnote supporting a

statement that “Arbitrary detention violates

customary international law and is within

[Alien Tort Claims Act] jurisdiction.” An

amicus curiae brief cites the same unpublished opinion as the first of six opinions

cited to support a statement that “U.S. courts

have repeatedly held that arbitrary detention

violates international law.”

CDC–4. The petitioner cited an unpublished opinion by the court of appeals for the

Sixth Circuit in a successful appeal of the Surface Transportation Board’s refusal to set

aside arbitrators’ finding that outsourcing

was causally related to a railroad merger, Union Pacific Railroad Co. v. Surface Transportation

Board (D.C. Cir. 02–1340, filed 11/08/2002,

judgment 02/03/2004), resolved by published opinion at 358 F.3d 31. The brief cites

the unpublished Sixth Circuit opinion to

support a statement that “Although no Court

has confronted the issue directly, at least one

court assumed, without analysis, that judicial

review is limited to whether the Board properly applied Lace Curtain[, Chicago and North

Western Transportation Co. (“Lace Curtain”), 3

I.C.C. 2d 729 (1987), affirmed sub nom. International Brotherhood of Electrical Workers v. I.C.C.,

862 F.2d 330 (D.C. Cir. 1988)].”

CDC–5. The appellant cited unpublished

opinions by the district courts for the District

of Columbia and the Eastern District of

Michigan in an unsuccessful appeal of a refusal to enjoin the termination of employees,

Drivers, Chauffeurs, and Helpers Local 639 v.

District of Columbia Public Schools (D.C. Cir.

02–7082, filed 07/17/2002, judgment

09/17/2003), resolved by unpublished per

curiam judgment at 2003 WL 22204128 (find-
Citing Unpublished Opinions in Federal Appeals

276

ing no error in the district court’s determination that the school district’s transformation

plan was a legitimate reduction in force). The

union’s appellant brief cites four opinions—

three published opinions by courts of appeals

for other circuits and one unpublished opinion by the district court for the District of Columbia—to support a statement that

“Deprivation of health insurance alone has

been viewed by other courts as irreparable

injury.” And in an argument that the school

district’s incompetence rose to a violation of

due process, the brief quotes a paragraph

from a Supreme Court opinion and then

invites the reader to “see, e.g.,” an unpublished opinion by the district court for the

Eastern District of Michigan and a published

opinion by the district court for the Western

District of Michigan.

Individual Case Analyses

Williams Energy Marketing & Trading Co. v.

Federal Energy Regulatory Commission (D.C. Cir.

02–1022, filed 01/11/2002, transferred 02/06/2002).

Appeal from: Federal Energy Regulatory Commission.

What happened: Petition for review of a decision

by the Federal Energy Regulatory Commission

transferred to the Ninth Circuit as part of

multidistrict litigation.

Related cases: Other cases transferred to the

Ninth Circuit as part of the same multidistrict litigation include the following: Southern California

Edison Co. v. Federal Energy Regulatory Commission

(D.C. Cir. 01–1528, filed 12/28/2001, transferred

02/06/2002), Turlock Irrigation District v. Federal

Energy Regulatory Commission (D.C. Cir. 01–1530,

filed 12/28/2001, transferred 02/06/2002), Imperial Irrigation District v. Federal Energy Regulatory

Commission (D.C. Cir. 01–1531, filed 12/28/2001,

transferred 02/06/2002), Coral Power L.L.C. v. Federal Energy Regulatory Commission (D.C. Cir. 01–

1532, filed 12/28/2001, transferred 02/06/2002),

City of Burbank v. Federal Energy Regulatory Commission (D.C. Cir. 01–1533, filed 12/28/2001,

transferred 02/06/2002), Sacramento Municipal

Utility District v. Federal Energy Regulatory Commission (D.C. Cir. 02–1029, filed 01/15/2002,

transferred 02/06/2002), California Electricity

Oversight Board v. Federal Energy Regulatory Commission (D.C. Cir. 02–1030, filed 01/17/2002,

transferred 02/06/2002), City of Los Angeles Department of Water and Power v. Federal Energy Regulatory Commission (D.C. Cir. 02–1032, filed

01/18/2002, transferred 02/06/2002), Dynegy

Power Marketing, Inc. v. Federal Energy Regulatory

Commission (D.C. Cir. 02–1048, filed 02/05/2002,

transferred 02/06/2002). Case number 02–1030

was also selected for this study.

Opinion: (1) The court’s unpublished 85-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

California Electricity Oversight Board v. Federal

Energy Regulatory Commission (D.C. Cir. 02–

1030, filed 01/17/2002, transferred 02/06/2002).

Appeal from: Federal Energy Regulatory Commission.

What happened: Petition for review of a decision

by the Federal Energy Regulatory Commission

transferred to the Ninth Circuit as part of

multidistrict litigation.

Related cases: Other cases transferred to the

Ninth Circuit as part of the same multidistrict litigation include the following: Southern California

Edison Co. v. Federal Energy Regulatory Commission

(D.C. Cir. 01–1528, filed 12/28/2001, transferred

02/06/2002), Turlock Irrigation District v. Federal

Energy Regulatory Commission (D.C. Cir. 01–1530,

filed 12/28/2001, transferred 02/06/2002), Imperial Irrigation District v. Federal Energy Regulatory

Commission (D.C. Cir. 01–1531, filed 12/28/2001,

transferred 02/06/2002), Coral Power L.L.C. v. Federal Energy Regulatory Commission (D.C. Cir. 01–

1532, filed 12/28/2001, transferred 02/06/2002),

City of Burbank v. Federal Energy Regulatory Commission (D.C. Cir. 01–1533, filed 12/28/2001,

transferred 02/06/2002), Williams Energy Marketing & Trading Co. v. Federal Energy Regulatory

Commission (D.C. 02–1022, filed 01/11/2002,

transferred 02/06/2002), Sacramento Municipal

Utility District v. Federal Energy Regulatory Commission (D.C. Cir. 02–1029, filed 01/15/2002,

transferred 02/06/2002), City of Los Angeles Department of Water and Power v. Federal Energy Regulatory Commission (D.C. Cir. 02–1032, filed

01/18/2002, transferred 02/06/2002), Dynegy

Power Marketing, Inc. v. Federal Energy Regulatory

Commission (D.C. Cir. 02–1048, filed 02/05/2002,

transferred 02/06/2002). Case number 02–1022

was also selected for this study.

Opinion: (1) The court’s unpublished 85-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.
Citing Unpublished Opinions in Federal Appeals

277

San Diego Gas & Electric Co. v. Federal Energy

Regulatory Commission (D.C. Cir. 02–1058, filed

02/13/2002, transferred 02/14/2002).

Appeal from: Federal Energy Regulatory Commission.

What happened: Petition for review of a decision

by the Federal Energy Regulatory Commission

transferred to the Ninth Circuit as part of

multidistrict litigation.

Opinion: (1) The court’s unpublished 32-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Producer Coalition v. Federal Energy Regulatory

Commission (D.C. Cir. 02–1073, filed 02/15/2002,

judgment 06/20/2003).

Appeal from: Federal Energy Regulatory Commission.

What happened: Unsuccessful petition for review of the Federal Energy Regulatory Commission’s jurisdiction over transfers of natural gas

pipelines.

Related cases: Petitions for review were also denied in 10 consolidated cases: Williams Gas Processing–Gulf Coast Co. v. Federal Energy Regulatory

Commission (D.C. Cir. 01–1327, filed, 07/26/2001,

judgment 06/20/2003), Williams Gas Processing–

Gulf Coast Co. v. Federal Energy Regulatory Commission (D.C. Cir. 02–1006, filed 01/07/2002, judgment 06/20/2003), Williams Gas Processing–Gulf

Coast Co. v. Federal Energy Regulatory Commission

(D.C. Cir. 02–1007, filed 01/07/2002, judgment

06/20/2003), Amerada Hess Corp. v. Federal Energy

Regulatory Commission (D.C. Cir. 02–1051, filed

02/11/2002, judgment 06/20/2003), Amerada Hess

Corp. v. Federal Energy Regulatory Commission (D.C.

Cir. 02–1052, filed 02/11/2002, judgment

06/20/2003), Amerada Hess Corp. v. Federal Energy

Regulatory Commission (D.C. Cir. 02–1053, filed

02/11/2002, judgment 06/20/2003), Transcontinental Gas Pipe Line Corp. v. Federal Energy Regulatory Commission (D.C. Cir. 02–1072, filed

02/15/2002, judgment 06/20/2003), Transcontinental Gas Pipe Line Corp. v. Federal Energy Regulatory Commission (D.C. Cir. 02–1074, filed

02/15/2002, judgment 06/20/2003), Producer Coalition v. Federal Energy Regulatory Commission (D.C.

Cir. 02–1075, filed 02/15/2002, judgment

06/20/2003), Producer Coalition v. Federal Energy

Regulatory Commission (D.C. Cir. 02–1076, filed

02/15/2002, judgment 06/20/2003).

Petitioner’s brief: The pipeline companies’ 7,698-

word petitioner brief cites eight published court

opinions (one by the U.S. Supreme Court, four by

the District of Columbia Circuit, and three by

other circuits); 27 published decisions by the Federal Energy Regulatory Commission, including

six decisions appealed and three other related

decisions; and one published decision by the

Federal Power Commission.

Respondent’s brief: The commission’s 12,243-

word respondent brief cites 31 published court

opinions (six by the U.S. Supreme Court, 20 by the

District of Columbia Circuit, and five by other

circuits); 50 published decisions by the Federal

Energy Regulatory Commission, including eight

decisions appealed and four other related decisions; and two published decisions by the Federal

Power Commission.

Petitioner’s reply brief: The pipeline companies’

3,047-word reply brief cites five published court

opinions (one by the U.S. Supreme Court, two by

the District of Columbia Circuit, and two by other

circuits); 15 published decisions by the Federal

Energy Regulatory Commission, including one

related decision; and one published decision by

the Federal Power Commission.

Opinion: (3) The court’s published 6,364-word

signed opinion, Williams Gas Processing–Gulf Coast

Co. v. Federal Energy Regulatory Commission, 331

F.3d 1011 (D.C. Cir. 2003) (seven headnotes), cites

18 published court opinions (four by the U.S. Supreme Court, 10 by the District of Columbia Circuit, and four by other circuits) and 20 published

decisions by the Federal Energy Regulatory

Commission. According to Westlaw

(05/12/2005), the court’s opinion has been cited

in two published District of Columbia Circuit

opinions, one published opinion by another circuit, two published FERC decisions, three secondary sources, three briefs and one certiorari petition in one U.S. Supreme Court case, and six appellate briefs in four cases (three in the District of

Columbia Circuit and one in another circuit).

Brotherhood of Teamsters, Auto Truck Drivers,

Line Drivers, Car Haulers, and Helpers Local 70

of Alameda County v. National Labor Relations

Board (D.C. Cir. 02–1094, filed 03/18/2002,

judgment 03/13/2003).

Appeal from: National Labor Relations Board.

What happened: Labor dispute concerning

whether transportation time from the parking lot

to the work site would be compensated. The dispute was dismissed by stipulation. The selected

case is the union’s appeal, which was consolidated with an appeal by the employer.

Related case: United Parcel Service, Inc. v. National Labor Relations Board (D.C. Cir. 02–1043, filed

02/01/2002, judgment 03/13/2003) (employer’s

appeal dismissed by stipulation).
Citing Unpublished Opinions in Federal Appeals

278

Petitioner’s brief: The union’s 1,001-word petitioner brief cites 11 published court opinions

(three by the U.S. Supreme Court, seven by the

District of Columbia Circuit, and one by another

circuit) and one published decision by the National Labor Relations Board.

Intervenor’s brief: The employer’s 7,434-word

intervenor brief cites 17 published court opinions

(six by the U.S. Supreme Court, four by the District of Columbia Circuit, six by other circuits, and

one by a district in another circuit), nine published decisions by the National Labor Relations

Board, and one treatise.

Respondent’s brief: The board’s 6,859-word respondent brief cites 30 published court opinions

(11 by the U.S. Supreme Court, 10 by the District

of Columbia Circuit, and nine by other circuits)

and 16 published decisions by the National Labor

Relations Board.

Petitioner’s reply brief: The union’s 638-word

reply brief cites one published opinion by the District of Columbia Circuit and two published decisions by the National Labor Relations Board.

Intervenor’s reply brief: The employer’s 3,390-

word reply brief cites eight published court opinions (four by the U.S. Supreme Court and four by

the District of Columbia Circuit) and 10 published

decisions by the National Labor Relations Board.

Opinion: (2) The court’s unpublished 30-word

per curiam order cites no opinions. The court’s

order is not on Westlaw.

Winstar Broadcasting Corp. v. Federal

Communications Commission (D.C. Cir. 02–1159,

filed 05/23/2002, judgment 07/24/2002).

Appeal from: Federal Communications Commission.

What happened: Petition for review voluntarily

dismissed.

Opinion: (1) The court’s unpublished 47-word

clerk’s order, Winstar Broadcasting Corp. v. Federal

Communications Commission, 2002 WL 1676514

(D.C. Cir. 2002), cites no opinions. According to

Westlaw (05/12/2005), the court’s order has not

been cited elsewhere.

Public Service Company of Colorado v. Federal

Communications Commission (D.C. Cir. 02–1163,

filed 05/24/2002, judgment 05/16/2003).

Appeal from: Federal Communications Commission.

What happened: Unsuccessful appeal of utility

pole rates set by the FCC.

Petitioner’s brief: The pole owner’s 9,914-word

petitioner brief cites 19 published court opinions

(seven by the U.S. Supreme Court, seven by the

District of Columbia Circuit, four by other circuits, and one by Colorado’s court of appeals in

this case), 10 decisions by the Federal Communications Commission (two published decisions in

this case and eight unpublished decisions), one

unpublished order in this case by a Colorado district court, and one treatise.

Respondent’s brief: The commission’s 10,817-

word respondent brief cites 22 published court

opinions (seven by the U.S. Supreme Court; 10 by

the District of Columbia Circuit; three by other

circuits; and two by Colorado’s court of appeals,

including one in this case), 12 decisions by the

Federal Communications Commission (eight published, including four decisions in this case, and

four unpublished), and one unpublished order in

this case by a Colorado district court.

Intervenor’s brief: Cable companies filed a 5,840-

word intervenor brief citing six published court

opinions (two by the U.S. Supreme Court, two by

the District of Columbia Circuit, one by another

circuit, and one by Colorado’s court of appeals in

this case), seven decisions by the Federal Communications Commission (five published, including two decisions in this case, and two unpublished), and one unpublished order in this case by

a Colorado district court.

Petitioner’s reply brief: The pole owner’s 5,975-

word reply brief cites five published court opinions (two by the U.S. Supreme Court, one by the

District of Columbia Circuit, one by another circuit, and one by Colorado’s court of appeals in

this case), nine decisions by the Federal Communications Commission (four published, including

one decision in this case, and five unpublished),

and one unpublished order in this case by a Colorado district court.

Opinion: (3) The court’s published 2,755-word

per curiam opinion, Public Service Company of

Colorado v. Federal Communications Commission, 328

F.3d 675 (D.C. Cir. 2003) (two headnotes), cites

three published court opinions (two by the District of Columbia Circuit and one by Colorado’s

court of appeals in this case), six decisions by the

Federal Communications Commission (four published decisions in this case and two unpublished

decisions), and one unpublished order in this case

by a Colorado district court. According to Westlaw (05/12/2005), the court’s opinion has been

cited in two FCC decisions (one published and

one unpublished) and three secondary sources.

Town of Fairview, Texas v. Federal Aviation

Administration (D.C. Cir. 02–1206, filed

07/01/2002, judgment 12/17/2002).

Appeal from: Federal Aviation Administration.
Citing Unpublished Opinions in Federal Appeals

279

What happened: Petition voluntarily dismissed.

Opinion: (1) The court’s unpublished 43-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Raley’s v. National Labor Relations Board (D.C.

Cir. 02–1219, filed 07/05/2002, judgment

11/13/2002).

Appeal from: National Labor Relations Board.

What happened: Agency appeal dismissed for

lack of jurisdiction.

Opinion: (2) The court’s 169-word unpublished

per curiam order, Raley’s v. National Labor Relations Board, 2002 WL 31545974 (D.C. Cir. 2002) (no

headnotes), cites two published opinions by the

District of Columbia Circuit. According to Westlaw (05/12/2005), the court’s order has not been

cited elsewhere. The court’s 144-word unpublished denial of the petitioner’s motion to clarify

the court’s opinion, Raley’s v. National Labor Relations Board, 2003 WL 289116 (D.C. Cir. 2003) (no

headnotes), cites one published opinion by the

District of Columbia Circuit. According to Westlaw (05/12/2005), the court’s order has not been

cited elsewhere.

El Paso Merchant Energy L.P. v. Federal Energy

Regulatory Commission (D.C. Cir. 02–1224, filed

07/11/2002, judgment 12/26/2002).

Appeal from: Federal Energy Regulatory Commission.

What happened: Petition for review of a decision

by the Federal Energy Regulatory Commission

dismissed as incurably premature. Some consolidated petitions were also dismissed and the others were transferred to the Ninth Circuit by the

same order.

Related cases: The selected appeal was consolidated with six others: Dynegy Power Marketing,

Inc. v. Federal Energy Regulatory Commission (D.C.

Cir. 02–1161, filed 05/24/2002, judgment

12/26/2002) (petition dismissed as premature),

Arizona Electric Power Cooperative, Inc. v. Federal

Energy Regulatory Commission (D.C. Cir. 02–1216,

filed 07/05/2002, transferred 12/26/2002) (transferred to the Ninth Circuit as part of multidistrict

litigation), Duke Energy North America, LLC v. Federal Energy Regulatory Commission (D.C. Cir. 02–

1218, filed 07/05/2002, judgment 12/26/2002)

(petition dismissed as premature), Williams Energy

Marketing & Trading Co. v. Federal Energy Regulatory Commission (D.C. Cir. 02–1226, filed

07/12/2002, judgment 12/26/2002) (petition dismissed as premature), Metropolitan Water District

of Southern California v. Federal Energy Regulatory

Commission (D.C. Cir. 02–1227, filed 07/12/2002,

transferred 12/26/2002) (transferred to the Ninth

Circuit as part of multidistrict litigation), Reliant

Energy Power Generation, Inc. v. Federal Energy

Regulatory Commission (D.C. Cir. 02–1229, filed

07/15/2002, judgment 12/26/2002) (petition dismissed as premature).

Opinion: (2) The court’s 291-word unpublished

per curiam order, Dynegy Power Marketing, Inc. v.

Federal Energy Regulatory Commission, 2002 WL

31926838 (D.C. Cir. 2002) (no headnotes), cites one

published District of Columbia Circuit opinion.

According to Westlaw (05/12/2005), the court’s

order has not been cited elsewhere.

Haley v. Federal Aviation Administration (D.C.

Cir. 02–1233, filed 07/16/2002, judgment

03/04/2004).

Appeal from: Federal Aviation Administration.

What happened: Pro se petition for review of

sanctions for employing persons who tested positive for drugs dismissed as untimely.

Respondent’s brief: The administration’s 9,008-

word respondent brief cites 10 published court

opinions (six by the U.S. Supreme Court and four

by the District of Columbia Circuit) and three

Federal Aviation Administration orders, including two in the petitioner’s case.

Opinion: (2) The court’s unpublished 366-word

per curiam judgment, Haley v. Federal Aviation

Administration, 89 Fed. Appx. 274, 2004 WL 438550

(D.C. Cir. 2004) (no headnotes), cites two published District of Columbia Circuit opinions. According to Westlaw (05/12/2005), the court’s

judgment has not been cited elsewhere.

National Association of State Utility Consumer

Advocates v. Federal Communications

Commission (D.C. Cir. 02–1261, filed 08/16/2002,

judgment 06/29/2004).

Appeal from: Federal Communications Commission.

What happened: Unsuccessful appeal of an order adjusting the manner in which local exchange

carriers may recover the fixed costs they incur in

providing service to residential and single-line

business customers.

Petitioner’s brief: The petitioner’s 10,430-word

brief cites 18 published court opinions (four by

the U.S. Supreme Court; 10 by the District of Columbia Circuit; and four by other circuits, including one in a related case); three published decisions by the Federal Communications Commission, including two in related cases; a technical

report available on the Internet; and the Federal

Communications Commission’s website.
Citing Unpublished Opinions in Federal Appeals

280

Respondent’s brief: The commission’s 11,455-

word respondent brief cites 23 published court

opinions (five by the U.S. Supreme Court; 12 by

the District of Columbia Circuit; and six by other

circuits, including one opinion in a related case);

five decisions by the Federal Communications

Commission, including the decision appealed and

another related decision; and one book.

Intervenor’s brief: Telephone companies filed a

3,451-word intervenor brief, citing eight published

court opinions (five by the District of Columbia

Circuit and three by other circuits, including one

in a related case) and five published decisions by

the Federal Communications Commission, including the decision appealed and another in a related

case.

Petitioner’s reply brief: The petitioner’s 5,619-

word reply brief cites one published District of

Columbia Circuit opinion; three published decisions by the Federal Communications Commission, including the decision appealed and another

related decision; and one treatise.

Opinion: (3) The court’s published 3,279-word

signed opinion, National Ass’n of State Utility Consumer Advocates v. Federal Communications Commission, 372 F.3d 454 (D.C. Cir. 2004) (four headnotes), cites nine published court opinions (one by

the U.S. Supreme Court, seven by the District of

Columbia Circuit, and one by another circuit),

four published decisions by the Federal Communications Commission, and a famous poem. According to Westlaw (05/12/2005), the court’s

opinion has been cited in one published opinion

by another circuit, one secondary source, and one

appellate brief in another circuit.

Cingular Wireless LLC v. Federal

Communications Commission (D.C. Cir. 02–1268,

filed 08/22/2002, judgment 12/20/2002).

Appeal from: Federal Communications Commission.

What happened: Petition voluntarily dismissed.

Related case: Until the selected case was voluntarily dismissed, it was consolidated with Cellco

Partnership v. Federal Communications Commission

(D.C. Cir. 02–1262, filed 08/19/2002, judgment

02/13/2004) (petition for review denied).

Opinion: (1) The court’s unpublished 66-word

clerk’s order, Cellco Partnership v. Federal Communications Commission, 2002 WL 31863849 (D.C. Cir.

2002), cites no opinions. According to Westlaw

(05/13/2005), the court’s order has not been cited

elsewhere.

New York Public Interest Research Group v.

Environmental Protection Agency (D.C. Cir. 02–

1299, filed 09/24/2002, judgment 02/24/2004).

Appeal from: Environmental Protection Agency.

What happened: Successful petition by an environmental organization to have the Environmental Protection Agency reconsider regulations

to “small municipal waste combustion units.”

Related cases: A consolidated petition was dismissed voluntarily, Wasatch Energy Systems v. Environmental Protection Agency (D.C. Cir. 01–1051,

filed 02/02/2001, judgment 07/18/2001). The

court’s published opinion also resolved five consolidated challenges to the same regulators:

Northeast Maryland Waste Disposal Authority v. Environmental Protection Agency (D.C. Cir. 01–1053,

filed 02/02/2001, judgment 02/24/2004) (partially successful municipal waste combustor’s

challenge), Sierra Club v. Environmental Protection

Agency (D.C. Cir. 01–1054, filed 02/05/2001,

judgment 02/24/2004) (successful environmental

organization’s challenge), Dutchess County Resource Recovery Agency v. Environmental Protection

Agency (D.C. Cir. 01–1055, filed 02/05/2001,

judgment 02/24/2004) (partially successful municipal waste combustor’s challenge), Northeast

Maryland Waste Disposal Authority v. Environmental

Protection Agency (D.C. Cir. 02–1280, filed

09/06/2002, judgment 02/24/2004) (successful

environmental organization’s challenge), and

Northeast Maryland Waste Disposal Authority v. Environmental Protection Agency (D.C. Cir. 03–1093,

filed 04/01/2003, judgment 02/24/2004) (successful environmental organization’s challenge).

Petitioner’s brief: The petitioners’ 11,651-word

brief cites 16 published opinions (two by the U.S.

Supreme Court and 14 by the District of Columbia

Circuit).

Respondent’s brief: The agency’s 20,819-word

respondent brief cites 28 published opinions (four

by the U.S. Supreme Court, 22 by the District of

Columbia Circuit, and two by other circuits) and

one related case in the district court for the District of Columbia.

Petitioner’s reply brief: The petitioners’ 5,434-

word reply brief cites eight published opinions by

the District of Columbia Circuit.

Opinion: (3) The court’s published 10,001-word

per curiam opinion, Northeast Maryland Waste Disposal Authority v. Environmental Protection Agency,

358 F.3d 936 (D.C. Cir. 2004) (12 headnotes), cites

32 published opinions (11 by the U.S. Supreme

Court and 21 by the District of Columbia Circuit),

one unpublished consent decree by the district
Citing Unpublished Opinions in Federal Appeals

281

court for the District of Columbia, and one dictionary.

The opinion cites a consent decree by the District of Columbia district court as requiring the

Environmental Protection Agency to promulgate

“standards to regulate units with a design capacity of 35 tpd or less” by November 30, 2005. (Page

6, note 5, 358 F.3d at 941 note 5.)

According to Westlaw (05/13/2005), the

court’s opinion has been cited in two published

District of Columbia Circuit opinions, one unpublished opinion by the district court for the District

of Columbia, seven secondary sources, three appellate briefs in three District of Columbia Circuit

cases, and two trial court briefs in two cases in the

district court for the District of Columbia.

International Union of Operating Engineers v.

National Labor Relations Board (D.C. Cir. 02–

1300, filed 09/25/2002, judgment 12/02/2003).

Appeal from: National Labor Relations Board.

What happened: Unsuccessful challenge by a

union claiming that the psychiatric hospitalization

of an employee was in retaliation for union activity.

Petitioner’s brief: The union’s 12,696-word petitioner brief cites 24 published court opinions (four

by the U.S. Supreme Court, 14 by the District of

Columbia Circuit, and six by other circuits) and 11

published decisions by the National Labor Relations Board, including the decision appealed.

Respondent’s brief: The board’s 10,223-word respondent brief cites 16 published court opinions

(five by the U.S. Supreme Court, eight by the District of Columbia Circuit, and three by other circuits) and seven published decisions by the National Labor Relations Board, including the decision appealed.

Intervenor’s brief: The employer’s 10,339-word

intervenor brief cites four published court opinions (two by the U.S. Supreme Court and two by

other circuits) and 10 published decisions by the

National Labor Relations Board.

Petitioner’s reply brief: The union’s 7,030-word

reply brief cites 14 published court opinions (five

by the U.S. Supreme Court, two by the District of

Columbia Circuit, and seven by other circuits)

and 10 published decisions by the National Labor

Relations Board.

Opinion: (3) The court’s published 3,849-word

signed opinion, International Union of Operating

Engineers v. National Labor Relations Board, 350 F.3d

105 (D.C. Cir. 2003) (four headnotes), cites eight

published court opinions (one by the U.S. Supreme Court, five by the District of Columbia Circuit, and two by other circuits) and three published National Labor Relations Board orders, including the order appealed. According to Westlaw (05/13/2005), the court’s opinion has been

cited in eight secondary sources and three appellate briefs in two District of Columbia Circuit

cases.

Town of Cortlandt v. Federal Energy Regulatory

Commission (D.C. Cir. 02–1331, filed 11/01/2002,

judgment pending).

Appeal from: Federal Energy Regulatory Commission.

What happened: Administrative appeal held in

abeyance pending resolution of an action in the

district court by an intervenor in the selected appeal, Millennium Pipeline Company, L.P. v. Evans

(D.D.C. 04–cv–0233, filed 02/13/2004).

Related cases: Consolidated appeals include Villages of Croton-on-Hudson v. Federal Energy Regulatory Commission (D.C. Cir. 02–1332, filed

10/28/2002, judgment pending) (held in abeyance), County of Westchester v. Federal Energy Regulatory Commission (D.C. Cir. 02–1338, filed

11/08/2002, judgment pending) (held in abeyance), Riverkeeper, Inc. v. Federal Energy Regulatory

Commission (D.C. Cir. 02–1348, filed 11/15/2002,

judgment pending) (held in abeyance), City of New

York v. Federal Energy Regulatory Commission (D.C.

Cir. 02–1349, filed 11/15/2002, judgment pending) (held in abeyance), and Great Lakes United v.

Federal Energy Regulatory Commission (D.C. Cir.

02–1353, filed 11/19/2002, judgment 12/27/2002)

(voluntarily dismissed).

Opinion: (0) The case is still open.

Union Pacific Railroad Co. v. Surface

Transportation Board (D.C. Cir. 02–1340, filed

11/08/2002, judgment 02/03/2004).

Appeal from: Surface Transportation Board.

What happened: Successful appeal of the Surface

Transportation Board’s refusal to set aside arbitrators’ finding that outsourcing was causally related

to a railroad merger.

Petitioner’s brief: The railroad company’s

14,854-word petitioner brief cites 33 published

court opinions (six by the U.S. Supreme Court, 12

by the District of Columbia Circuit, 11 by other

circuits, one by the district court for the District of

Columbia, and three by other district courts), one

unpublished opinion by another circuit, 15 decisions by the Surface Transportation Board (10

published and five unpublished, including the

three decisions appealed), four decisions by the

National Mediation Board, and four arbitrator

decisions.
Citing Unpublished Opinions in Federal Appeals

282

The brief cites an unpublished Sixth Circuit

opinion to support the statement, “Although no

Court has confronted the issue directly, at least

one court assumed, without analysis, that judicial

review is limited to whether the Board properly

applied Lace Curtain[, Chicago and North Western

Transportation Co. (“Lace Curtain”), 3 I.C.C. 2d 729

(1987), affirmed sub nom. International Brotherhood of

Electrical Workers v. I.C.C., 862 F.2d 330 (D.C. Cir.

1988)].” (Page 16.)

Amicus brief: The National Railway Labor Conference filed a 4,107-word amicus curiae brief,

citing 17 published court opinions (eight by the

U.S. Supreme Court, seven by the District of Columbia Circuit, and two by other circuits) and

four decisions by the Surface Transportation

Board (three published and one unpublished).

Respondent’s brief: The government’s 10,561-

word respondent brief cites 47 published court

opinions (16 by the U.S. Supreme Court, 17 by the

District of Columbia Circuit, 12 by other circuits,

and two by districts in other circuits), 15 decisions

by the Surface Transportation Board (nine published and six unpublished, including two decisions in this case).

Petitioner’s reply brief: The railroad company’s

7,427-word reply brief cites 40 published court

opinions (seven by the U.S. Supreme Court, 16 by

the District of Columbia Circuit, 10 by other circuits, one by the district court for the District of

Columbia, and six by other district courts), nine

decisions by the Surface Transportation Board (six

published and three unpublished), three decisions

by the National Mediation Board, and three arbitrator decisions.

Opinion: (3) The court’s published 4,050-word

signed opinion and concurrence, Union Pacific

Railroad Co. v. Surface Transportation Board, 358

F.3d 31 (D.C. Cir. 2004) (seven headnotes), cites 24

published court opinions (nine by the U.S. Supreme Court, eight by the District of Columbia

Circuit, and seven by other circuits) and four published decisions by the Interstate Commerce

Commission. According to Westlaw

(05/13/2005), the court’s opinion has been cited

in one unpublished decision by the Surface

Transportation Board, three secondary sources,

and one appellate brief in a case in another circuit.

Constellation Power Source, Inc. v. Federal

Energy Regulatory Commission (D.C. Cir. 02–

1367, filed 11/27/2002, judgment pending).

Appeal from: Federal Energy Regulatory Commission.

What happened: A case that arose out of the

2000 California energy crisis and has been held in

abeyance pending the resolution of other cases

arising from that crisis. The California Power Exchange Corporation, the Northern California

Power Agency, the Pacific Gas and Electric Company, the City of Santa Clara, Pinnacle West

Companies, the Public Service Company of New

Mexico, the Southern California Edison Company,

the California Power Exchange Corporation, the

Southern California Edison Company, and the

Pacific Gas and Electric Company were permitted

to intervene. Final briefs are due 03/24/2006.

Related case: Consolidated with Powerex Corp. v.

Federal Energy Regulatory Commission (D.C. Cir.

03–1285, filed 09/18/2003, judgment pending).

Opinion: (0) The court’s 101-word unpublished

per curiam consolidation order, Constellation

Power Source, Inc. v. Federal Energy Regulatory

Commission, 2004 WL 326223 (D.C. Cir. 2004) (no

headnotes), cites no opinions. According to Westlaw (05/26/2005), the court’s order has been cited

in one published District of Columbia Circuit

opinion.

Three Y, LLC v. Environmental Protection Agency

(D.C. Cir. 02–1372, filed 12/04/2002, judgment

06/29/2004).

Appeal from: Environmental Protection Agency.

What happened: Unsuccessful agency appeal.

EPA designated a piece of property in Edgewater,

New Jersey, across the Hudson River from New

York City, a Superfund site because of contamination from oil storage and recycling. The owner of

adjoining land included in the Superfund site designation challenged the decision.

Related case: The case was consolidated with

Honeywell International, Inc v. Environmental Protection Agency (D.C. Cir. 02–1371, filed 12/04/2002,

judgment 06/29/2004), a challenge by companies

associated with oil storage and recycling on the

land. The court of appeals held that the petitioner’s property was properly included within

the Superfund site boundaries.

Petitioner’s brief: The landowner’s 7,265-word

petitioner brief cites nine published opinions

(eight by the District of Columbia Circuit and one

by another circuit).

Respondent’s brief: EPA’s 14,391-word respondent brief responds to the petitions in both cases

and cites 46 published opinions (five by the U.S.

Supreme Court, 39 by the District of Columbia

Circuit, and two by other circuits).

Petitioner’s reply brief: The landowner’s 3,615-

word reply brief cites three published District of

Columbia Circuit opinions and one General Accounting Office report.
Citing Unpublished Opinions in Federal Appeals

283

Opinion: (3) The court’s published 4,819-word

signed opinion, Honeywell International, Inc. v. Environmental Protection Agency, 372 F.3d 441 (D.C.

Cir. 2004) (seven headnotes), cites 15 published

opinions (two by the U.S. Supreme Court and 13

by the District of Columbia Circuit). According to

Westlaw (05/13/2005), the court’s opinion has

been cited in one published opinion by the District of Columbia Circuit, five secondary sources,

and one appellate brief in a District of Columbia

Circuit case.

American Wrecking Corp. v. Secretary of Labor

(D.C. Cir. 02–1379, filed 12/17/2002, judgment

12/19/2003).

Appeal from: Occupational Safety and Health

Review Commission.

What happened: Partially successful appeal of a

finding that a demolition subcontractor violated

Occupational Safety and Health Administration

regulations, resulting in a worker’s being killed by

14 tons of loose bricks. The court found substantial evidence of violation, but not substantial evidence of willful violation. As a prevailing party,

the subcontractor sought approximately $300,000

in fees. The court awarded the subcontractor approximately $40,000.

Petitioner’s brief: The subcontractor’s 7,964-

word petitioner brief cites six published court

opinions (five by the District of Columbia Circuit

and one by another circuit) and five decisions by

the Occupational Safety Health Review Commission.

Respondent’s brief: The government’s 8,193-

word respondent brief cites 22 published court

opinions (one by the U.S. Supreme Court, 14 by

the District of Columbia Circuit, and seven by

other circuits); five decisions by the Occupational

Safety Health Review Commission, including one

in this case; and one law review article.

Petitioner’s reply brief: The subcontractor’s

1,686-word reply brief cites one published District

of Columbia Circuit opinion and seven decisions

by the Occupational Safety Health Review

Commission.

Opinion: (3) The court resolved the appeal with

a published 5,024-word signed opinion, American

Wrecking Corp. v. Secretary of Labor, 351 F.3d 1254

(D.C. Cir. 2003) (17 headnotes), citing 15 published court opinions (three by the U.S. Supreme

Court, six by the District of Columbia Circuit, and

six by other circuits) and nine decisions by the

Occupational Safety and Health Review Commission, including three in this case. According to

Westlaw (05/13/2005), the court’s opinion has

been cited in two published opinions by the District of Columbia Circuit, one unpublished opinion by another circuit, five decisions by the Occupational Safety and Health Review Commission,

three secondary sources, and five appellate briefs

in four cases (four appellate briefs in three cases in

the District of Columbia Circuit and one appellate

brief in one case in another circuit).

The court resolved the fee request with a published 4,911-word per curiam opinion, American

Wrecking Corp. v. Secretary of Labor, 364 F.3d 321

(D.C. Cir. 2004)

122 (seven headnotes), citing 14

published court opinions (one by the U.S. Supreme Court; 10 by the District of Columbia Circuit, including the opinion resolving the appeal;

and three by other circuits) and five decisions by

the Occupational Safety and Health Review

Commission, including three in this case. According to Westlaw (05/13/2005), the court’s opinion

has been cited in one published opinion by the

District of Columbia Circuit, one published opinion by a bankruptcy court in another circuit, one

published opinion by the Court of International

Trade, three administrative decisions, and six secondary sources.

In re Tepper (D.C. Cir. 02–3061, filed 06/24/2002,

judgment 08/27/2002).

Appeal from: District of the District of Columbia.

What happened: Pro se motion to file a successive habeas corpus petition denied.

Opinion: (2) The court’s unpublished 163-word

per curiam order cites no opinions. The court’s

order is not on Westlaw.

United States v. Williams (D.C. Cir. 02–3066,

filed 07/17/2002, judgment 08/12/2003).

Appeal from: District of the District of Columbia.

What happened: Granting a joint motion by the

defendant and the government, the court of appeals vacated a criminal sentence and remanded

the case for resentencing.

Opinion: (2) The court’s unpublished 91-word

per curiam order cites no opinions. The court’s

order is not on Westlaw.

United States v. Gantt (D.C. Cir. 02–3095, filed

10/22/2002, judgment 02/11/2003).

Appeal from: District of the District of Columbia.

 

122. See also 47-word per curiam order awarding

fees, American Wrecking Corp. v. Secretary of Labor, 2004

WL 848178 (D.C. Cir. 2004), citing no opinions.
Citing Unpublished Opinions in Federal Appeals

284

What happened: Unsuccessful petition for release on bail pending appeal.

Opinion: (2) The court’s unpublished 259-word

per curiam judgment, United States v. Gantt, 55

Fed. Appx. 574, 2003 WL 346267 (D.C. Cir. 2003)

(no headnotes), cites two published District of

Columbia Circuit opinions. According to Westlaw

(05/13/2005), the court’s judgment has not been

cited elsewhere.

United States v. Azize (D.C. Cir. 02–3112, filed

12/23/2002, judgment 01/28/2004).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful appeal of a conviction for ecstasy possession.

Appellant’s brief: The defendant’s 3,953-word

appellant brief cites 31 published opinions (19 by

the U.S. Supreme Court, seven by the District of

Columbia Circuit, one by another circuit, three by

the district court for the District of Columbia, and

one by a district court in another circuit).

Appellee’s brief: The government’s 11,654-word

appellee brief cites 20 published opinions (10 by

the U.S. Supreme Court and 10 by the District of

Columbia Circuit).

Opinion: (2) The court’s unpublished 409-word

judgment and memorandum, United States v. Azize, 88 Fed. Appx. 416, 2004 WL 210702 (D.C. Cir.

2004) (four headnotes), cites four published opinions (three by the U.S. Supreme Court and one by

the District of Columbia Circuit). According to

Westlaw (05/13/2005), the court’s judgment has

been cited in one secondary source.

In re Westine (D.C. Cir. 02–5050, filed 02/07/2002,

judgment 02/26/2002).

Appeal from: District of the District of Columbia.

What happened: Pro se petition for writ of habeas corpus dismissed as filed in the wrong court.

Opinion: (2) The court’s unpublished 36-word

per curiam order cites no opinions. The court’s

order is not on Westlaw.

Lockett v. Bush (D.C. Cir. 02–5055, filed

02/19/2002, judgment 11/14/2002).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful pro se prisoner

appeal. The court granted appellees summary

affirmance.

Opinion: (2) The court’s unpublished 395-word

per curiam order cites seven published opinions

(one by the U.S. Supreme Court and six by the

District of Columbia Circuit). According to Westlaw (05/13/2005), the court’s order has not been

cited elsewhere.

United States v. Schofield (D.C. Cir. 02–5057,

filed 02/20/2002, judgment 04/16/2002).

Appeal from: District of the District of Columbia.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s unpublished 44-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Coleman v. United States Parole Commission

(D.C. Cir. 02–5064, filed 02/26/2002, judgment

05/08/2002).

Appeal from: District of the District of Columbia.

What happened: Prisoner’s appeal dismissed for

failure to pay the filing fee.

Opinion: (1) The court’s unpublished 145-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Lathram v. Snow (D.C. Cir. 02–5075, filed

03/07/2002, judgment 08/01/2003).

Appeal from: District of the District of Columbia.

What happened: Partially successful appeal of

summary judgment granted to the government in

an action for employment discrimination by a female public affairs specialist for the customs service.

Appellant’s brief: The employee’s 8,687-word

appellant brief cites 51 published opinions (16 by

the U.S. Supreme Court, 13 by the District of Columbia Circuit, 19 by other circuits, two by the

district court for the District of Columbia, and one

by a district court in another circuit) and one treatise.

Appellee’s brief: The government’s 9,236-word

appellee brief cites 45 published opinions (nine by

the U.S. Supreme Court, 20 by the District of

Columbia Circuit, 12 by other circuits, and four by

the district court for the District of Columbia).

Appellant’s reply brief: The employee’s 6,469-

word reply brief cites 32 published opinions

(seven by the U.S. Supreme Court, 11 by the District of Columbia Circuit, 11 by other circuits, and

three by the district court for the District of Columbia).

Opinion: (3) The court’s published 4,425-word

signed opinion, Lathram v. Snow, 336 F.3d 1085

(D.C. Cir. 2003) (seven headnotes), cites 15 published opinions (six by the U.S. Supreme Court,

eight by the District of Columbia Circuit, and one

by another circuit) and two unpublished orders
Citing Unpublished Opinions in Federal Appeals

285

by the district court in this case. According to

Westlaw (05/13/2005), the court’s opinion has

been cited in two published opinions by the District of Columbia Circuit, 14 opinions by the district court for the District of Columbia (11 published and four unpublished), five secondary

sources, one petition for writ of certiorari in the

U.S. Supreme Court, four appellate briefs in four

cases (three in the District of Columbia Circuit

and one in another circuit), and two trial briefs in

two district court cases (one in the district court

for the District of Columbia and one in a district

in another circuit).

Gibbs v. Smithsonian Institution (D.C. Cir. 02–

5084, filed 03/20/2002, judgment 07/29/2002).

Appeal from: District of the District of Columbia.

What happened: Civil judgment summarily affirmed.

Related case: The selected case was consolidated

with Vance v. Smithsonian Institution (D.C. Cir. 02–

5051, filed 02/14/2002, judgment 07/29/2002)

(civil appeal dismissed for lack of prosecution).

Opinion: (2) The court’s unpublished 456-word

per curiam order, Gibbs v. Smithsonian Institution,

2002 WL 1751251 (D.C. Cir. 2002), cites five published opinions (one by the U.S. Supreme Court

and four by the District of Columbia Circuit). According to Westlaw (05/13/2005), the court’s order has not been cited elsewhere.

Chevron U.S.A. Inc. v. Federal Energy Regulatory

Commission (D.C. Cir. 02–5086, filed 03/20/2002,

judgment 10/10/2003).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful appeal by the

Federal Energy Regulatory Commission of the

district court’s narrowing of its regulatory authority concerning natural gas transportation over the

Outer Continental Shelf.

Related cases: The selected appeal was from a

district court action by oil companies against the

Federal Energy Regulatory Commission in which

a producer coalition intervened. It was consolidated with six other appeals from two other district court actions by pipeline companies against

the Federal Energy Regulatory Commission. A

producer coalition and the Independent Petroleum Association of America supported the Federal Energy Regulatory Commission’s appeals.

Three appeals arose from one district court case,

Williams Companies v. Federal Energy Regulatory

Commission (D.C. Cir. 02–5056, filed 02/20/2002,

judgment 10/10/2003) (unsuccessful appeal by

the Federal Energy Regulatory Commission), Williams Companies v. Federal Energy Regulatory Commission (D.C. Cir. 02–5078, filed 03/07/2002,

judgment 10/10/2003) (unsuccessful appeal by

the producer coalition), and Williams Companies v.

Federal Energy Regulatory Commission D.C. Cir. 02–

5082, filed 03/12/2002, judgment 10/10/2003)

(unsuccessful appeal by the Independent Petroleum Association of America). Three appeals

arose from the other district court case, Duke Energy Field Services, LP v. Federal Energy Regulatory

Commission (D.C. Cir. 02–5077, filed 03/07/2002,

judgment 10/10/2003) (unsuccessful appeal by

the Federal Energy Regulatory Commission),

Duke Energy Field Services, LP v. Federal Energy

Regulatory Commission (D.C. Cir. 02–5081, filed

03/12/2002, judgment 10/10/2003) (unsuccessful

appeal by the Independent Petroleum Association

of America), and Duke Energy Field Services, LP v.

Federal Energy Regulatory Commission (D.C. Cir.

02–5085, filed 03/20/2002, judgment 10/10/2003)

(unsuccessful appeal by the producer coalition).

Appellant’s brief: The Federal Energy Regulatory Commission’s 11,421-word appellant brief

cites 29 published opinions (14 by the U.S. Supreme Court, 14 by the District of Columbia Circuit, and the appealed opinion by the district

court for the District of Columbia).

Appellee’s brief: The oil companies’ 7,611-word

appellee brief in 02–5086 cites 18 published opinions (three by the U.S. Supreme Court, 13 by the

District of Columbia Circuit, one by another circuit, and the appealed opinion by the district

court for the District of Columbia) and a dictionary.

Appellant’s reply brief: The Federal Energy

Regulatory Commission’s 6,486-word reply brief

cites 27 published opinions (13 by the U.S. Supreme Court, 11 by the District of Columbia Circuit, two by other circuits, and the appealed opinion by the district court for the District of Columbia).

Opinion: (3) The court’s published 2,755-word

signed opinion, Williams Companies v. Federal Energy Regulatory Commission, 345 F.3d 910 (D.C. Cir.

2003) (three headnotes), cites eight published

opinions (two by the U.S. Supreme Court, four by

the District of Columbia Circuit, one by another

circuit, and the appealed opinion by the district

court for the District of Columbia) and one technical manual. According to Westlaw (05/09/2005),

the court’s opinion has been cited in one published District of Columbia Circuit opinion, two

published decisions by the Federal Energy Regulatory Commission, the Federal Register, three
Citing Unpublished Opinions in Federal Appeals

286

other secondary sources, three briefs in one U.S.

Supreme Court case, and three appellate briefs in

one District of Columbia Circuit case.

Thompson v. United States (D.C. Cir. 02–5105,

filed 03/29/2002, judgment 04/11/2002).

Appeal from: District of the District of Columbia.

What happened: Habeas corpus appeal dismissed on the government’s motion.

Opinion: (1) The court’s unpublished 44-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Clark v. Mineta (D.C. Cir. 02–5155, filed

05/14/2002, judgment 07/10/2002).

Appeal from: District of the District of Columbia.

What happened: Civil appeal dismissed as premature.

Opinion: (2) The court’s unpublished 111-word

per curiam order, Clark v. Mineta, 2002 WL

1477292 (D.C. Cir. 2002), cites no opinions. According to Westlaw (05/13/2005), the court’s order has not been cited elsewhere.

Gartrell v. Ashcroft (D.C. Cir. 02–5179, filed

05/30/2002, judgment 04/11/2003).

Appeal from: District of the District of Columbia.

What happened: Appeal by the government of a

decision in favor of prisoners dismissed as settled.

Opinion: (1) The court’s unpublished 29-word

clerk’s order, Gartrell v. Ashcroft, 2003 WL 1873847

(D.C. Cir. 2003), cites no opinions. According to

Westlaw (05/13/2005), the court’s order has not

been cited elsewhere.

Johnson v. Westfall (D.C. Cir. 02–5183, filed

06/04/2002, judgment 07/19/2002).

Appeal from: District of the District of Columbia.

What happened: Pro se prisoner appeal dismissed for failure to inform the court of a valid

mailing address.

Opinion: (1) The court’s unpublished 90-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Morales v. Doe (D.C. Cir. 02–5236, filed

07/31/2002, judgment 12/20/2002).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful pro se prisoner

appeal.

Opinion: (2) The court’s unpublished 169-word

per curiam order, Morales v. Doe, 53 Fed. Appx.

126, 2002 WL 31866258 (D.C. Cir. 2002) (no headnotes), cites one published District of Columbia

Circuit opinion. According to Westlaw

(05/13/2005), the court’s order has not been cited

elsewhere.

Habib v. Bush (D.C. Cir. 02–5284, filed

09/11/2002, judgment 07/19/2004).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful appeal of the district court’s judgment that federal courts did not

have jurisdiction over alien prisoners held at

Guantanamo Bay, Cuba, by an Australian citizen

detained in Pakistan in August 2001, transferred

to Egypt, taken to Afghanistan, and then transferred to Guantanamo Bay. The Supreme Court

reversed, however, in Rasul v. Bush, 124 S. Ct. 2686

(2004), and the court of appeals remanded the

case to the district court for further action.

Related cases: For briefing purposes, the selected case was consolidated with Rasul v. Bush

(D.C. Cir. 02–5288, filed 09/11/2002, judgment

07/19/2004) (British and Australian citizens captured in Afghanistan and transferred to Guantanamo Bay). For decision purposes, these two

appeals were consolidated with Al Odah v. United

States (D.C. Cir. 02–5251, filed 08/12/2002, judgment 07/19/2004).

Appellant’s brief: The habeas corpus petitioners’

13,415-word appellant brief cites 52 published

American court opinions (25 by the U.S. Supreme

Court; five by the District of Columbia Circuit;

nine by other circuits; two by the district court for

the District of Columbia, including an opinion

appealed in a consolidated case; 10 by district

courts in other circuits; and one by the United

States Court of Berlin), four unpublished American court opinions (one by another circuit, the

decision by the district court for the District of

Columbia appealed and the decision by the district court for the District of Columbia appealed in

a consolidated case, and one by a district court in

another circuit), five opinions by foreign courts

(three by the European Court of Human Rights,

one by the International Court of Justice, and one

by the Organization of American States’ InterAmerican Commission on Human Rights), five

law review articles, the Restatement (Third) of the

Foreign Relations Law of the United States, one news

article, and two websites.

The brief cites an unpublished opinion by the

Fourth Circuit with a published opinion by the

Fourth Circuit and a published opinion by the

Eastern District of Virginia in a footnote supporting the statement, “The United States prosecutes
Citing Unpublished Opinions in Federal Appeals

287

crimes committed in Guantanamo—including

crimes committed by aliens—because the enclave

is ‘within its territorial jurisdiction.’” (Pages 36–37

and note 17.)

The brief cites an unpublished opinion by the

Southern District of New York with published

opinions by the Ninth Circuit, the District of Massachusetts, the Southern District of Florida, and

the Northern District of California in a footnote

supporting the statement, “Arbitrary detention

violates customary international law and is within

[Alien Tort Claims Act] jurisdiction.” (Page 49 and

note 36.)

Amicus brief: Human rights organizations and

legal scholars filed a 6,464-word amicus curiae

brief, citing 25 published American court opinions

(16 by the U.S. Supreme Court, one by the District

of Columbia Circuit, three by other circuits, an

opinion by the district court for the District of Columbia appealed in a consolidated case, and five

by district courts in other circuits), three unpublished American court opinions (the decision by

the district court for the District of Columbia appealed, the decision by the district court for the

District of Columbia appealed in a consolidated

case, and an opinion by a district court in another

circuit), two nineteenth century opinions by English courts (1 by the court of common pleas and

one by the admiralty court), 14 opinions by other

foreign courts (six by the European Court of Human Rights, four by the United Nations Human

Rights Committee, one by the United Nations

Working Group on Arbitrary Detention, two by

the Organization of American States’ InterAmerican Commission on Human Rights, and

one by the International Court of Justice), nine

treatises, two law review articles, the Restatement

(Third) of the Foreign Relations Law of the United

States, two United Nations reports, and one

United States government Web report.

The brief cites the same unpublished opinion

by the Southern District of New York as the appellants’ brief cites. It is the first of six opinions

cited to support the statement, “U.S. courts have

repeatedly held that arbitrary detention violates

international law.” (Page 12.) Four of the other

opinions cited are the same as the appellants cited

(published opinions by the Ninth Circuit, the District of Massachusetts, the Southern District of

Florida, and the Northern District of California)

and the other is a published opinion by the District of Kansas, which the brief notes was affirmed

by a published opinion by the Tenth Circuit.

Appellee’s brief: The government’s 14,743-word

appellee brief cites 66 published opinions (27 by

the U.S. Supreme Court, 20 by the District of

Columbia Circuit, nine by other circuits, three by

the district court for the District of Columbia, four

by district courts in other circuits, one by the U.S.

Court of Berlin, one by the United States Navy’s

board of review, and one by the court of military

justice), one treatise, one White House news release on the Web, and one other website.

Amicus brief: Organizations opposing the

court’s jurisdiction over the prisoners filed a

7,283-word amicus curiae brief, citing 33 published opinions (16 by the U.S. Supreme Court;

nine by the District of Columbia Circuit; four by

other circuits; and four by district courts in other

circuits, including one in a related case), two treatises, one law review article, and one newspaper

article.

Appellant’s reply brief: The habeas corpus petitioners’ 6,868-word reply brief cites 20 published

opinions (15 by the U.S. Supreme Court, three by

the District of Columbia Circuit, and two by other

circuits), one unpublished opinion by another circuit, and two law review articles.

The petitioners’ reply brief cites the same unpublished Fourth Circuit opinion as its opening

brief. The brief cites this unpublished opinion

with a published Fourth Circuit opinion (the same

one cited in the opening brief) to support the

statement, “The United States, of course, has long

taken the position that Guantanamo Bay is within

the ‘territory’ and ‘territorial jurisdiction’ of the

United States. Under the terms of the lease, Guantanamo Bay is subject to the ‘complete jurisdiction

and control’ of the United States. [Citation.] When

it suits them, the federal government relies upon

this language for its contention that crimes committed on Guantanamo Bay are ‘within its territorial jurisdiction.’” (Page 17.)

Opinion: (3) The court’s published 8,901-word

signed opinion and concurrence, Al Odah v. United

States, 321 F.3d 1134 (D.C. Cir. 2003) (five headnotes), cites 64 published opinions (29 by the U.S.

Supreme Court, 19 by the District of Columbia

Circuit, 14 by other circuits, the opinion by the

district court for the District of Columbia appealed, and one by New York’s court of appeals),

eight law review articles, one website, and one

book. According to Westlaw (05/13/2005), the

court’s opinion has been cited in one U.S. Supreme Court opinion, two published opinions by

the District of Columbia Circuit, six opinions by

other circuits (five published and one unpublished), seven published opinions by the district

court for the District of Columbia, six published

opinions by district courts in other circuits, one
Citing Unpublished Opinions in Federal Appeals

288

published opinion by the Court of Federal Claims,

154 secondary sources, three petitions for a writ of

certiorari to the U.S. Supreme Court, 34 briefs in

four U.S. Supreme Court cases, 15 appellate briefs

in nine cases (10 briefs in five cases in the District

of Columbia Circuit, three briefs in three cases in

other circuits, and two briefs in one case in North

Dakota’s supreme court), and eight trial court

briefs in seven district court cases (three briefs in

three cases in the District of Columbia district,

and five briefs in four cases in districts in other

circuits).

Following the Supreme Court’s reversal, the

court vacated the district court’s judgment in an

unpublished 97-word per curiam judgment, Al

Odah v. United States, 1003 Fed. Appx. 676, 2004

WL 1613572 (D.C. Cir. 2004) (no headnotes), citing

no opinions. According to Westlaw (05/13/2005),

the court’s judgment has been cited in two secondary sources.

In re Savage (D.C. Cir. 02–5309, filed 09/12/2002,

judgment 11/22/2002).

Appeal from: District of the District of Columbia.

What happened: Pro se prisoner’s petition for a

writ of mandamus denied.

Opinion: (2) The court’s unpublished 21-word

per curiam order, In re Savage, 2002 WL 31654861

(D.C. Cir. 2002), cites no opinions. According to

Westlaw (05/13/2005), the court’s order has not

been cited elsewhere.

Schrecker v. Department of Justice (D.C. Cir. 02–

5317, filed 10/09/2002, judgment 11/18/2003).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful appeal of the district court’s finding that the government had finally responded adequately to a history professor’s Freedom of Information Act request for records of McCarthy-era investigations.

Appellant’s brief: The professor’s 5,748-word

appellant brief cites 15 published opinions (1 by

the U.S. Supreme Court; 10 by the District of Columbia Circuit, including one related to this appeal; one by another circuit; and three by the district court for the District of Columbia, all of

which are related to this appeal), a famous novel,

and Who Was Who.

Amicus brief: Various organizations promoting

public information filed a 4,090-word amicus curiae brief, citing 13 published opinions (two by the

U.S. Supreme Court; seven by the District of Columbia Circuit, including one related to this appeal; three by the district court for the District of

Columbia, including one related to this appeal;

and one by a district court in another circuit), Social Security Administration life tables available

on the Internet, and Who Was Who.

Appellee’s brief: The government’s 6,007-word

appellee brief cites 24 published opinions (three

by the U.S. Supreme Court; 12 by the District of

Columbia Circuit, including one related to this

appeal; two by another circuit; six by the district

court for the District of Columbia, including three

related to this appeal; and one by a district court

in another circuit) and Who Was Who.

Appellant’s reply brief: The professor’s 4,618-

word reply brief cites 13 published opinions (two

by the U.S. Supreme Court; seven by the District

of Columbia Circuit, including one related to this

appeal; one by another circuit; two by the district

court for the District of Columbia; and one by a

district court in another circuit).

Opinion: (3) The court’s published 4,512-word

signed opinion, Schrecker v. United States Department of Justice, 349 F.3d 657 (D.C. Cir. 2003) (10

headnotes), cites 21 published opinions (two by

the U.S. Supreme Court; 16 by the District of Columbia Circuit, including one related to this appeal; and three by the district court for the District

of Columbia, all of which are related to this appeal), Social Security Administration life tables,

and Who Was Who. According to Westlaw

(05/09/2005), the court’s opinion has been cited

in one unpublished opinion by the District of Columbia Circuit, two published opinions by the

district court for the District of Columbia, one

published opinion by a district court in another

circuit, eight secondary sources, one appellate

brief in one case in another circuit, and one trial

court brief in one case in a district in another circuit.

Judicial Watch, Inc. v. National Energy Policy

Development Group (D.C. Cir. 02–5355, filed

11/12/2002, judgment 05/10/2005).

Appeal from: District of the District of Columbia.

What happened: Dismissal by mandamus of an

action to obtain information about the workings

of the National Energy Policy Development

Group, which was chaired by the Vice President

of the United States. Judicial Watch and the Sierra

Club brought separate actions in the district court

for the District of Columbia and the district court

ordered discovery. (The Sierra Club’s action was

filed originally in the district court for the Northern District of California and subsequently transferred to the district court for the District of Columbia.) The Vice President appealed the discov-
Citing Unpublished Opinions in Federal Appeals

289

ery order in the action by Judicial Watch and filed

a separate petition for a writ of mandamus in that

action. The selected case is the appeal. On the following day, the Vice President appealed the discovery order in the action by the Sierra Club. The

two appeals and the petition for a writ of mandamus were consolidated. The court of appeals

originally denied the interlocutory appeals and

the mandamus petition, but after Supreme Court

review the court ruled en banc that the district

court actions should be dismissed. The briefs reviewed for this study are the briefs filed for the en

banc review; the original panel decision was

based on motions.

Related cases: In re Cheney (D.C. Cir. 02–5354,

filed 11/12/2002, judgment 05/10/2005) (petition

for a writ of mandamus in the action by Judicial

Watch) and Sierra Club v. Cheney (D.C. Cir. 02–

5356, filed 11/13/2002, judgment 05/10/2005)

(appeal in the action by the Sierra Club).

Appellant’s brief: The Vice President’s 16,735-

word appellant and petitioner brief cites 32 published opinions (23 by the U.S. Supreme Court,

including the opinion vacating the court of appeals’ panel opinion; seven by the District of Columbia Circuit, including the vacated panel opinion; and two by the district court for the District of

Columbia, including the opinion under review

and an opinion in a related case), one law review

article, four books, and a government report

available on the Web.

Appellee’s brief: The 14,122-word appellee and

respondent brief by Judicial Watch and the Sierra

Club cites 62 published opinions (22 by the U.S.

Supreme Court, including the opinion vacating

the court of appeals’ panel opinion; 30 by the District of Columbia Circuit, including the vacated

panel opinion; one by another circuit; seven by

the district court for the District of Columbia, including an opinion in the case under review and

an opinion in a related case; and two by a district

court in another circuit), two government reports,

two government websites, one newspaper article,

and one dictionary.

Amicus brief: Ten organizations that advocate

open government filed a 3,463-word amicus curiae brief, citing 15 published opinions (three by

the U.S. Supreme Court, including the opinion

vacating the court of appeals’ panel opinion; eight

by the District of Columbia Circuit; and four by

the district court for the District of Columbia, including an opinion in a related case); seven reports, including five on the Web; three other websites; and two books.

Appellant’s reply brief: The Vice President’s

6,231-word reply brief cites 17 published opinions

(eight by the U.S. Supreme Court, including the

opinion vacating the court of appeals’ panel opinion; seven by the District of Columbia Circuit,

including the vacated panel opinion; one by another circuit; and one by the district court for the

District of Columbia), one report, and one book.

Opinion: (3) The court initially resolved the appeals and petition with a published 12,198-word

signed opinion with a concurrence and a dissent,

In re Cheney, 334 F.3d 1096 (D.C. Cir. 2003) (15

headnotes), citing 50 published opinions (24 by

the U.S. Supreme Court, 23 by the District of Columbia Circuit, two by other circuits, and an opinion by the district court for the District of Columbia in this case), two unpublished orders by the

district court for the District of Columbia in this

case, two law review articles, and one government

report. According to Westlaw (05/25/2005), the

court’s opinion has been cited in the Supreme

Court opinion vacating it, one published opinion

by the District of Columbia Circuit, one unpublished opinion by another circuit, two published

opinions by the district court for the District of

Columbia, one published opinion by another district court, 31 secondary sources, five briefs in the

U.S. Supreme Court review of this case, two other

briefs in two other U.S. Supreme Court cases, six

appellate briefs in five cases (four briefs in three

cases in the District of Columbia Circuit and two

briefs in two cases in other circuits), and three

trial court briefs in two cases (1 brief in a case in

the district court for the District of Columbia and

two briefs in a case in another district court).

After the Supreme Court vacated the court of

appeals’ decision, the court reheard the case en

banc and issued a published 3,363-word signed

opinion, In re Cheney, 406 F.3d 723 (D.C. Cir. 2005)

(seven headnotes), citing nine published opinions

(three by the U.S. Supreme Court, including the

opinion vacating the court of appeals’ panel opinion; five by the District of Columbia Circuit, including the vacated panel opinion; and an opinion

by the district court for the District of Columbia in

this case), one government report, and one treatise. According to Westlaw (05/11/2005), the

court’s opinion has not been cited elsewhere.

Craig v. United States (D.C. Cir. 02–5373, filed

11/25/2002, judgment 03/07/2003).

Appeal from: District of the District of Columbia.

What happened: Appeal of a judgment in favor

of defendants in a civil rights case dismissed for

failure to file an appellant’s brief.
Citing Unpublished Opinions in Federal Appeals

290

Opinion: (1) The court’s unpublished 84-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Jenco v. Islamic Republic of Iran (D.C. Cir. 02–

7019, filed 02/14/2002, judgment 03/28/2002).

Appeal from: District of the District of Columbia.

What happened: Civil appeal voluntarily dismissed.

Opinion: (1) The court’s unpublished 44-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Sanders v. D.C. Department of Employment

Services (D.C. Cir. 02–7027, filed 03/29/2002,

judgment 08/14/2002).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful pro se appeal;

civil judgment summarily affirmed.

Opinion: (2) The court’s unpublished 226-word

per curiam order, Sanders v. D.C. Department of

Employment Services, 2002 WL 1876970 (D.C. Cir.

2002), cites three published District of Columbia

Circuit opinions. According to Westlaw

(05/16/2005), the court’s order has not been cited

elsewhere.

Brown v. Koester Environmental Services (D.C.

Cir. 02–7075, filed 06/28/2002, judgment

10/17/2003).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful appeal of summary judgment granted to an employer in an employment discrimination case.

Related case: An appeal by the coplaintiff was

dismissed for lack of prosecution, Brown v. Koester

Environmental Services (D.C. Cir. 02–7077, filed

06/28/2002, judgment 03/13/2003).

Appellant’s brief: The employee’s 11,450-word

appellant brief cites 33 published court opinions

(11 by the U.S. Supreme Court, 10 by the District

of Columbia Circuit, three by other circuits, three

by the district court for the District of Columbia,

one by a district court in another circuit, and five

by the District of Columbia’s court of appeals).

Appellee’s brief: The employer’s 6,352-word appellee brief cites 24 published court opinions (five

by the U.S. Supreme Court, four by the District of

Columbia Circuit, 10 by other circuits, three by

the district court for the District of Columbia, and

two by district courts in other circuits).

Appellant’s reply brief: The employee’s 4,077-

word reply brief cites 10 published court opinions

(three by the U.S. Supreme Court, three by the

District of Columbia Circuit, and four by other

circuits).

Opinion: (2) The court’s unpublished 401-word

judgment, Brown v. Koester Environmental Services,

Inc., 78 Fed. Appx. 719, 2003 WL22426889 (D.C.

Cir. 2003) (no headnotes), cites four published

opinions (three by the U.S. Supreme Court and

one by the District of Columbia Circuit). According to Westlaw (05/16/2005), the court’s judgment has not been cited elsewhere.

Drivers, Chauffeurs, and Helpers Local 639 v.

District of Columbia Public Schools (D.C. Cir.

02–7082, filed 07/17/2002, judgment 09/17/2003).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful appeal of a refusal to enjoin the termination of employees, because the court found no error in the district

court’s determination that the school district’s

transformation plan was a legitimate reduction in

force.

Appellant’s brief: The union’s 9,056-word appellant brief cites 23 published court opinions (seven

by the U.S. Supreme Court, eight by the District of

Columbia Circuit, six by other circuits, one by the

district court for the District of Columbia, and one

by a district court in another circuit), two unpublished opinions (1 by the district court for the District of Columbia and one by a district court in

another circuit), and one decision by the District

of Columbia’s Public Employees Relations Board.

The brief cites four opinions—three published

opinions by other circuits and one unpublished

opinion by the district court for the District of Columbia—to support the statement, “Deprivation

of health insurance alone has been viewed by

other courts as irreparable injury.” (Page 33.)

In an argument that the school district’s incompetence rose to a due process violation, the

brief quotes a paragraph from a Supreme Court

opinion and then invites the reader to “see, e.g.,”

an unpublished opinion by the Eastern District of

Michigan and a published opinion by the Western

District of Michigan. (Page 31.)

Appellee’s brief: The school district’s 2,992-word

appellee brief cites eight published opinions (1 by

the U.S. Supreme Court and seven by the District

of Columbia Circuit).

Appellant’s reply brief: The union’s 91-word reply brief cites six published opinions (1 by the

U.S. Supreme Court and five by the District of

Columbia Circuit).

Opinion: (2) The court’s unpublished 449-word

per curiam judgment, Drivers, Chauffeurs, and

Helpers Local 639 v. District of Columbia Public
Citing Unpublished Opinions in Federal Appeals

291

Schools, 2003 WL 22204128 (D.C. Cir. 2003) (1

headnote), cites three published opinions by the

District of Columbia Circuit. According to Westlaw (05/16/2005), the court’s judgment has not

been cited elsewhere.

Pan American Airways Corp. v. Air Line Pilots

Association (D.C. Cir. 02–7084, filed 07/18/2002,

judgment 05/05/2003).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful appeal of the enforcement of an airline’s System Board of Adjustment ruling in favor of an airline pilot who left an

aircraft full of passengers rather than begin a

flight that would give him a work shift in excess

of 16 hours. The court of appeals affirmed the district court’s judgment in a fully briefed appeal

without opinion “for the reasons stated by the

district court in the memorandum opinion in

support thereof.” The district court’s opinion was

published as Pan American Airways Corp. v. Air

Line Pilots Association, International, 206 F. Supp.

2d 12 (D.D.C. 2002).

Appellant’s brief: The airline’s 5,641-word appellant brief cites 25 published opinions (three by

the U.S. Supreme Court, six by the District of Columbia Circuit, 13 by other circuits, and three by

districts in other circuits), one unpublished order

by the District of Columbia Circuit, and a practice

guide.

The unpublished order cited in the appellant’s

brief stayed enforcement of an administrative interpretation of the 16-hour rule forbidding airlines

to require pilots to initiate flights that would

make their shifts longer than 16 hours, even if because of weather or mechanical delays. The flight

at issue in the selected case occurred 15 months

before the court of appeals finally determined the

agency’s interpretation—an interpretation the

union favored—was correct in a published opinion also cited in the appellant’s brief.

Appellee’s brief: The union’s 3,990-word appellee brief cites 35 published opinions (14 by the

U.S. Supreme Court, three by the District of Columbia Circuit, 15 by other circuits, the published

district court opinion in this case, and two by districts in other circuits).

Appellant’s reply brief: The airline’s 832-word

reply brief cites three published opinions (two by

other circuits and one by a district in another circuit).

Opinion: (2) The court’s unpublished 97-word

per curiam judgment, Pan American Airways Corp.

v. Air Line Pilots Association International, 62 Fed.

Appx. 356, 2003 WL 21025273 (D.C. Cir. 2003) (no

headnotes), cites no opinions. According to Westlaw (05/16/2005), the court’s judgment has been

cited in two secondary sources.

Kim v. Amtrak National Railroad Passenger

Corp. (D.C. Cir. 02–7103, filed 09/04/2002,

judgment 09/26/2003).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful appeal of summary judgment granted to the employer in a case

alleging age discrimination in employment.

Appellant’s brief: The employee’s 9,663-word

appellant brief cites 18 published opinions (five

by the U.S. Supreme Court, seven by the District

of Columbia Circuit, five by other circuits, and

one by the district court for the District of Columbia), the unpublished opinion by the district court

appealed, and a practice guide.

Appellee’s brief: The employer’s 10,471-word

appellee brief cites 20 published opinions (five by

the U.S. Supreme Court, seven by the District of

Columbia Circuit, one by another circuit, five by

the district court for the District of Columbia, one

by a district court in another circuit, and one by

New York’s court of appeals).

Appellant’s reply brief: The employee’s 5,467-

word reply brief cites 10 published opinions (five

by the U.S. Supreme Court, three by the District of

Columbia Circuit, one by another circuit, and one

by the district court for the District of Columbia).

Opinion: (2) The court’s unpublished 228-word

per curiam judgment, Kim v. Amtrak National Railroad Passenger Corp., 76 Fed. Appx. 336, 2003 WL

22239543 (D.C. Cir. 2003) (no headnotes), cites one

published District of Columbia Circuit opinion.

According to Westlaw (05/16/2005), the court’s

judgment has not been cited elsewhere.

Caldwell v. Proctor (D.C. Cir. 02–7121, filed

10/09/2002, judgment 01/02/2003).

Appeal from: District of the District of Columbia.

What happened: Prisoner appeal dismissed for

lack of prosecution.

Opinion: (1) The court’s unpublished 110-word

clerk’s order cites no opinions. The court’s order

is not on Westlaw.

Soudavar v. Islamic Republic of Iran (D.C. Cir.

02–7129, filed 10/24/2002, judgment 06/10/2003).

Appeal from: District of the District of Columbia.

What happened: Unsuccessful pro se appeal of

decision by the district court that it did not have

jurisdiction over the plaintiff’s complaint against

Iran.
Citing Unpublished Opinions in Federal Appeals

292

Appellee’s brief: Iran’s 3,528-word brief cites 15

published opinions (two by the U.S. Supreme

Court, two by the District of Columbia Circuit,

seven by other circuits, and four by district courts

in other circuits) and the solicitor general’s brief in

a pending petition for a writ of certiorari in the

Supreme Court.

Opinion: (2) The court’s unpublished 632-word

per curiam judgment, Soudavar v. Islamic Republic

of Iran, 67 Fed. Appx. 618, 2003 WL 21401768 (D.C.

Cir. 2003) (four headnotes), cites five published

opinions (two by the U.S. Supreme Court and

three by the District of Columbia Circuit). According to Westlaw (05/16/2005), the court’s judgment has been cited in one published opinion by

the district court for the District of Columbia, six

secondary sources, and three trial court briefs in

three cases (two in the district court for the District of the District of Columbia and one in a district in another circuit).

Father Flanagan’s Boys Home v. District of

Columbia Government (D.C. Cir. 02–7157, filed

12/10/2002, judgment 04/17/2003).

Appeal from: District of the District of Columbia.

What happened: Appeal of a district court judgment in favor of the defendants in a civil rights

case dismissed in part for lack of jurisdiction and

summarily affirmed in part.

Opinion: (2) The court’s unpublished 473-word

per curiam order, Father Flanagan’s Boys Home v.

District of Columbia Government, 2003 WL 1907987

(D.C. Cir. 2003), cites five published opinions (1

by the U.S. Supreme Court and four by the District of Columbia Circuit). According to Westlaw

(05/16/2005), the court’s order has been cited in

one secondary source.

13. Federal Circuit123

The Federal Circuit does not permit citation

to unpublished opinions in unrelated cases.

124

Of the 50 cases randomly selected, 12 are

appeals from district courts (two from the

Northern District of Illinois and one each

from the Northern District of California, the

Northern District of Florida, the Southern

District of Florida, the Eastern District of Louisiana, the District of Massachusetts, the District of New Jersey, the Southern District of

New York, the Northern District of Ohio, the

Eastern District of Texas, and the Southern

District of Texas), eight are appeals from the

Court of Federal Claims, 16 are appeals from

the Court of Appeals for Veterans Claims,

one is an appeal from the Board of Patent

Appeals and Interferences, one is an appeal

from the Trademark Trial and Appeal Board,

and 12 are appeals from the Merit Systems

Protection Board.

125

The publication rate in this sample is

10%. Five of the cases were resolved by

signed published opinions, 21 were resolved

 

123. Docket information is available through

PACER. All opinions and almost all orders resolving

cases are on Westlaw. The only exception in this sample

is a dismissed appeal from the Court of Appeals for

Veterans Claims. Briefs are not on Westlaw for appeals

from the Merit Systems Protection Board, but they are

on Westlaw for most other cases. (Of the 12 cases in this

sample that were not appeals from the Merit Systems

Protection Board and in which counseled briefs were

filed, all briefs are on Westlaw for eight cases, some

briefs are on Westlaw for two cases, and no briefs are

on Westlaw for two cases.)

124. Fed. Cir. L.R. 47.6(b) (“An opinion or order

which is designated as not to be cited as precedent is

one unanimously determined by the panel issuing it as

not adding significantly to the body of law. Any opinion or order so designated must not be employed or

cited as precedent.”).

The court’s original local rules, adopted October 1,

1982, distinguished published and unpublished opinions and proscribed citation to the latter in unrelated

cases.

125. In 2002, 1,793 cases were filed in the court of

appeals for the Federal Circuit.
Citing Unpublished Opinions in Federal Appeals

293

by unpublished opinions published in the

Federal Appendix (13 signed, of which 11 are

designated “orders,” and eight per curiam, of

which four are designated “decisions”), and

24 were resolved by the equivalent of docket

judgments (20 dismissal orders and four affirming judgments without opinion), all but

one of which are published in the Federal Appendix.

Published opinions averaged 6,895

words in length, ranging from 2,124 to 19,084.

Unpublished opinions averaged 692 words in

length, ranging from 53 to 3,074. Seventeen

opinions were under 1,000 words in length

(65%, all unpublished), and 10 of these were

under 500 words in length (38%).

Twelve of the appeals were fully briefed.

In 28 of the appeals no counseled brief was

filed, and in 10 of the appeals a counseled

brief was filed only for one side.

There are citations to unpublished court

opinions in eight of the cases. In three cases

the citations are only to opinions in related

cases; in five cases there are citations to unpublished opinions in unrelated cases. All of

the citations to unrelated unpublished opinions are in briefs, not opinions.

Of the unrelated unpublished opinions

cited by the parties in these cases, one is by

the court of appeals for the Federal Circuit,

three are by district courts, one is by the

Court of Federal Claims, and one is by a state

appellate court.

CF–1. In an unsuccessful pro se appeal

by a former employee of Clark Air Force Base

in the Philippines of a decision by the Merit

Systems Protection Board that the Whistleblower Protection Act does not provide relief

for former employees, Guzman v. Office of Personnel Management (Fed. Cir. 02–3173, filed

03/19/2002, judgment 12/17/2002), resolved

by unpublished decision at 53 Fed. Appx.

927, 2002 WL 31863832, the government cited

an unpublished Federal Circuit opinion to

point out that the petitioner should not have

cited it, because the court forbids citations to

its unpublished opinions, and to point out

that it would support the government’s position anyway.

CF–2. In a voluntarily dismissed patent

appeal concerning methods of using the telephone to control other devices, Glenayre Electronics, Inc. v. Jackson (Fed. Cir. 02–1537, filed

08/13/2002, judgment 05/29/2003), resolved

by unpublished order at 66 Fed. Appx. 875,

2003 WL 21377730, the inventor—the defendant and appellant—cited an unpublished

opinion by the district court for the Northern

District of Illinois, the district from which the

case was appealed. The inventor appealed

the district court’s refusal to permit him to

file counterclaims against the plaintiff’s customers. The brief cites the unpublished opinion to support a statement that “the district

court abused its discretion by failing to accord appropriate consideration to the fact

that none of [the plaintiff’s] customers has

agreed to be bound by a judgment against

[the plaintiff].” The defendant’s brief quotes a

published opinion by the district court for the

Western District of Pennsylvania, and the

quotation includes a citation to an unpublished opinion by the district court for the

District of Massachusetts.

CF–3. In an appeal by the FDIC that

challenged its dismissal for lack of standing

as a plaintiff in an action challenging the Financial Institutions Reform, Recovery, and

Enforcement Act of 1989 as breaching contracts with banks, Federal Deposit Insurance

Corp. v. United States (Fed. Cir. 02–5104, filed

04/19/2002, judgment 07/25/2003), resolved

by unpublished order dismissing the appeal

as moot, WestFed Holdings, Inc. v. United

States, 70 Fed. Appx. 589, 2003 WL 21774148

(Fed. Cir. 2003), the FDIC cited an unpublished opinion by the district court for the

Eastern District of Louisiana and an unpublished opinion by the Court of Federal

Claims. Its brief cites the Eastern District of

Louisiana opinion and a published opinion

by the court of appeals for the Fourth Circuit
Citing Unpublished Opinions in Federal Appeals

294

to support a statement that “the FIRREA limitations period is tollable by agreement, the

terms of which agreements will be enforced.”

The brief cites the unpublished opinion by

the Court of Federal Claims as collecting

cases relevant to the brief’s statement that

“Whether due diligence has been exercised is

determined on a case-by-case basis.”

CF–4. In an unsuccessful appeal of a

finding of infringement of patents for enteric

coating of pills to protect them from stomach

acid, Astra Aktiebolag v. Cheminor Drugs, Ltd.

(Fed. Cir. 03–1135, filed 12/04/2002, judgment 12/11/2003), resolved by unpublished

opinion at In re Omeprazole Patent Litigation,

84 Fed. Appx. 76, 2003 WL 22928641 (Fed.

Cir. 2003), the plaintiffs’ appellee and crossappellant brief cites an unpublished opinion

by the district court for the District of Delaware in order to distinguish the opinion, because it was cited by defendants in consolidated cases.

CF–5. In an unsuccessful appeal of

summary judgment in favor of the government in an action challenging the denial of a

logging permit as an unconstitutional taking,

Seiber v. United States (Fed. Cir. 03–5010, filed

11/01/2002, judgment 04/19/2004), resolved

by published opinion at 364 F.3d 1356, the

government cited an opinion by California’s

court of appeals that originally was published, but, as the government’s brief acknowledges, was ordered depublished by

California’s supreme court. The opinion is

cited as an example of a court specifically

recognizing “that the doctrine of public ownership of wildlife represents a ‘background

principle’ of property law which bars a taking claim based on regulations designed to

protect wildlife from harm.”

Individual Case Analyses

Linear Technology Corp. v. Impala Linear Corp.

(Fed. Cir. 02–1118, filed 01/10/2002, judgment

02/15/2002).

Appeal from: Northern District of California.

What happened: Permission to appeal district

court orders certified by the district court for interlocutory appeal denied in an action concerning

a patent for controlling circuits in synchronously

switched voltage regulators.

Related cases: Linear Technology Corp. v. Impala

Linear Corp. (Fed. Cir. 02–1068, filed 12/03/2001,

judgment 02/15/2002) (lead appeal), Linear Technology Corp. v. Impala Linear Corp. (Fed. Cir. 02–

1069, filed 12/03/2001, judgment 02/15/2002)

(appeal), Linear Technology Corp. v. Impala Linear

Corp. (Fed. Cir. 02–1119, filed 01/10/2002, judgment 02/15/2002) (cross-appeal).

Opinion: (2) The court’s unpublished 1,155-

word signed order, Linear Technology Corp. v. Impala Linear Corp., 31 Fed. Appx. 700, 2002 WL

398833 (Fed. Cir. 2002) (three headnotes), cites

three published opinions (1 by the U.S. Supreme

Court and two by the Federal Circuit). According

to Westlaw (04/28/2005), the court’s order has

been cited in two published Federal Circuit opinions in related appeals, three secondary sources,

and one appellate brief in a Federal Circuit case.

Watts v. XL Systems, Inc. (Fed. Cir. 02–1139,

filed 01/16/2002, judgment 03/06/2003).

Appeal from: Eastern District of Texas.

What happened: Unsuccessful appeal of a jury

verdict of infringement of a patent for a pipe connection. The plaintiff’s consolidated cross-appeal

was also unsuccessful.

Related case: Watts v. XL Systems, Inc. (Fed. Cir.

02–1140, filed 01/16/2002, judgment 03/06/2003)

(unsuccessful cross-appeal).

Appellant’s brief: The defendant’s 14,916-word

appellant brief cites 37 published opinions (five

by the U.S. Supreme Court, 25 by the Federal Circuit, five by other circuits, and two by district

courts).

Appellee’s brief: The plaintiff’s 14,355-word

cross-appellant and appellee brief cites 41 published opinions (two by the U.S. Supreme Court,

25 by the Federal Circuit, six by other circuits,

four by district courts, one by Texas’s supreme

court, and three by Texas’s courts of appeals), one

related case, and the Restatement (First) of Torts.

Appellant’s reply brief: The defendant’s 6,961-

word reply brief cites 40 published opinions

(three by the U.S. Supreme Court, 20 by the Federal Circuit, 12 by other circuits, two by district

courts, one by New Hampshire’s supreme court,

and two by Texas’s courts of civil appeals).

Appellee’s reply brief: The plaintiff’s 5,022-word

reply brief cites 12 published opinions (two by the

U.S. Supreme Court, two by the Federal Circuit,
Citing Unpublished Opinions in Federal Appeals

295

five by another circuit, one by Texas’s supreme

court, and two by Texas’s courts of appeals).

Opinion: (1) The court’s 20-word per curiam

judgment without opinion, Watts v. XL Systems,

Inc., 56 Fed. Appx. 922, 2003 WL 932439 (Fed. Cir.

2003), cites no opinions. According to Westlaw

(04/28/2005), the court’s judgment has not been

cited elsewhere.

Bailey v. Dart Container Corp. of Michigan (Fed.

Cir. 02–1165, filed 01/29/2002, judgment

10/28/2002).

Appeal from: District of Massachusetts.

What happened: Patent appeal concerning

molded plastic coffee cup lids dismissed as settled.

Related case: The court dismissed the defendants’ “conditional” cross-appeal, holding that

their role as appellees afforded them sufficient

opportunity to make their arguments, Bailey v.

Dart Container Corp. of Michigan, 292 F.3d 1360

(Fed. Cir. 2002), resolving Bailey v. Dart Container

Corp. of Michigan (Fed. Cir. 02–1166, filed

01/29/2002, judgment 06/07/2002).

Appellant’s brief: The plaintiff’s 13,096-word

appellant brief cites 20 published opinions (16 by

the Federal Circuit, three by the District of Massachusetts in this litigation, and one by the Court of

Federal Claims) and one unpublished opinion by

the Federal Circuit in a related appeal.

Appellee’s brief: The defendants’ 14,006-word

appellee brief cites 32 published opinions (two by

the U.S. Supreme Court, 28 by the Federal Circuit,

and two by the District of Massachusetts in this

litigation) and one unpublished opinion by the

Federal Circuit in a related appeal.

Appellant’s reply brief: The plaintiff’s 7,068-

word reply brief cites 29 published opinions (two

by the U.S. Supreme Court, 26 by the Federal Circuit, and one by another circuit).

Opinion: (1) The court’s 19-word order, Bailey

v. Dart Container Corp. of Michigan, 50 Fed. Appx.

982, 2002 WL 31553783 (Fed. Cir. 2002), cites no

opinions. According to Westlaw (04/14/2005), the

court’s order has not been cited elsewhere.

Ohio Cellular Products Corp. v. Adams USA, Inc.

(Fed. Cir. 02–1168, filed 01/30/2002, judgment

06/10/2002).

Appeal from: Northern District of Ohio.

What happened: Fourth party defendant’s crossappeal voluntarily dismissed in patent litigation

concerning the manufacture of “cross-linked

foamed polyolefin padding used primarily in athletic equipment such as football helmets.”

Related cases: Previous appeals include Ohio

Cellular Products Corp. v. Adams USA, Inc. (Fed.

Cir. 98–1448, filed 07/09/1998, judgment

06/12/2000), resolved initially by published opinion at 175 F.3d 1343 (1999) (allowing successful

defendants in a patent infringement action to

amend the judgment to subject the unsuccessful

plaintiff’s sole shareholder to personal liability for

attorney fees), reversed by Nelson v. Adams USA,

Inc., 529 U.S. 460 (2000), so ultimately resolved by

a remand to the district court; Nelson v. Adams

USA, Inc. (Fed. Cir. 00–1066, filed 11/04/1999,

judgment 01/24/2002) (dismissed as moot).

Consolidated appeals include Ohio Cellular

Products Corp. v. Adams USA, Inc. (Fed. Cir. 02–

1079, filed 12/12/2001, judgment 11/07/2002),

resolved by judgment without opinion at 50 Fed.

Appx. 422, 2002 WL 31497320 (unsuccessful appeal of attorney fees awarded to successful defendants); and Ohio Cellular Products Corp. v. Adams

USA, Inc. (Fed. Cir. 02–1228, filed 02/27/2002,

judgment 04/12/2002), resolved by unpublished

order at 34 Fed. Appx. 714, 2002 WL 826017

(cross-appeal dismissed for failure to pay the

docketing fee).

Opinion: (1) The court’s 110-word order, Ohio

Cellular Products Corp. v. Adams USA, Inc., 38 Fed.

Appx. 595, 2002 WL 1333873 (Fed. Cir. 2002), cites

no opinions. According to Westlaw (04/28/2005),

the court’s order has not been cited elsewhere.

Idolor v. Espiritu (Fed. Cir. 02–1226, filed

02/26/2002, judgment 03/29/2002).

Appeal from: Eastern District of Louisiana.

What happened: Pro se appeal of the dismissal

of a complaint for child support transferred to the

court for the correct circuit.

Opinion: (2) The court’s unpublished 238-word

signed order, Idolor v. Espiritu, 33 Fed. Appx. 512,

2002 WL 553746 (Fed. Cir. 2002) (no headnotes),

cites no opinions. According to Westlaw

(04/28/2005), the court’s order has not been cited

elsewhere.

Benedict v. General Motors Corp. (Fed. Cir. 02–

1353, filed 04/25/2002, judgment 07/19/2002).

Appeal from: Northern District of Florida.

What happened: Appeal from a published decision, Benedict v. General Motors Corp., 184 F. Supp.

2d 1197 (N.D. Fla. 2002), dismissed by the parties.

Opinion: (1) The court’s 18-word order, Benedict

v. General Motors Corp., 42 Fed. Appx. 466, 2002

WL 1733706 (Fed. Cir. 2002), cites no opinions.

According to Westlaw (04/28/2005), this order

has been cited in one unpublished district court

opinion (acknowledging the dismissal of the ap-
Citing Unpublished Opinions in Federal Appeals

296

peal of the district court case with a published

opinion).

Phonometrics, Inc. v. Trimark Hotel, Inc. (Fed.

Cir. 02–1424, filed 06/13/2002, judgment

09/11/2003).

Appeal from: Southern District of Florida.

What happened: Unsuccessful appeal of summary judgment granted to defendants in consolidated patent actions against hotel chains concerning a method of providing guests with real-time

information about the cost of their telephone calls.

Related cases: Nine consolidated appeals

briefed together and resolved by the same judgment include Phonometrics, Inc. v. Hyatt Corp. (Fed.

Cir. 02–1418, filed 06/13/2002, judgment

09/11/2003), Phonometrics, Inc. v. Hyatt Corp. (Fed.

Cir. 02–1419, filed 06/13/2002, judgment

09/11/2003), Phonometrics, Inc. v. Holiday Inns, Inc.

(Fed. Cir. 02–1420, filed 06/13/2002, judgment

09/11/2003), Phonometrics, Inc. v. Best Western International, Inc. (Fed. Cir. 02–1421, filed

06/13/2002, judgment 09/11/2003), Phonometrics,

Inc. v. Inter-Continental Hotels Corp. (Fed. Cir. 02–

1422, filed 06/13/2002, judgment 09/11/2003),

Phonometrics, Inc. v. Best Western International, Inc.

(Fed. Cir. 02–1423, filed 06/13/2002, judgment

09/11/2003), Phonometrics, Inc. v. Meditrust Corp.

(Fed. Cir. 02–1425, filed 06/13/2002, judgment

09/11/2003), Phonometrics, Inc. v. Clubhouse Inns of

America (Fed. Cir. 02–1426, filed 06/13/2002,

judgment 09/11/2003), and Phonometrics, Inc. v.

Forte Hotels, Inc. (Fed. Cir. 02–1511, filed

07/31/2002, judgment 09/11/2003).

Prior appeals include Phonometrics, Inc. v. Hospitality Franchise Systems, Inc. (Fed. Cir. 99–1086,

filed 11/25/1998, judgment 09/09/2000), resolved by opinion published at 203 F.3d 790 (successful appeal by the plaintiff on a holding that

the complaint was adequate even though it did

not reflect the court of appeals’ construction of

claims); Phonometrics, Inc. v. Aston Hotels and Resorts (Fed. Cir. 00–1023, filed 10/14/1999, judgment 04/25/2001), resolved by unpublished order

at Phonometrics, Inc. v. ITT Sheraton Corp., 232 F.3d

914 (table), 2000 WL 576492 (vacating attorney fee

award upon reversal of defendants’ summary

judgment); Phonometrics, Inc. v. EZ-8 Motel, Inc.

(Fed. Cir. 00–1460, filed 07/17/2000, judgment

10/03/2001) and Phonometrics, Inc. v. Nikko Hotels

(U.S.A.), Inc. (Fed. Cir. 00–1515, filed 08/17/2000,

judgment 10/03/2001), resolved by judgment

without opinion at Phonometrics, Inc. v. Hospitality

Franchise Systems, Inc., 20 Fed. Appx. 850, 2001 WL

1182363 (affirming district court); Phonometrics,

Inc. v. Hotel Corp. of the Pacific (Fed. Cir. 01–1018,

filed 10/18/2000, judgment 10/03/2001), resolved by judgment without opinion at Phonometrics, Inc. v. Hospitality Franchise Systems, Inc., 20

Fed. Appx. 859, 2001 WL 1190428 (affirming district court); Phonometrics, Inc. v. Choice Hotels International, Inc. (Fed. Cir. 01–1045, filed

10/24/2000, judgment 10/09/2001), resolved by

unpublished opinion at 21 Fed. Appx. 910, 2001

WL 1217219 (unsuccessful appeal of defendants’

summary judgment); In re Phonometrics, Inc. (Fed.

Cir. 01–M639, filed 11/21/2000, judgment

01/03/2001), In re Phonometrics, Inc. (Fed. Cir. 01–

M640, filed 11/21/2000, judgment 01/03/2001),

In re Phonometrics, Inc. (Fed. Cir. 01–M641, filed

11/21/2000, judgment 01/03/2001), In re Phonometrics, Inc. (Fed. Cir. 01–M642, filed 11/21/2000,

judgment 01/03/2001), In re Phonometrics, Inc.

(Fed. Cir. 01–M645, filed 11/21/2000, judgment

01/03/2001), In re Phonometrics, Inc. (Fed. Cir. 01–

M646, filed 11/21/2000, judgment 01/03/2001),

In re Phonometrics, Inc. (Fed. Cir. 01–M648, filed

11/21/2000, judgment 01/03/2001), In re

Phonometrics, Inc. (Fed. Cir. 01–M649, filed

11/21/2000, judgment 01/03/2001), In re Phonometrics, Inc. (Fed. Cir. 01–M652, filed 11/21/2000,

judgment 01/03/2001), In re Phonometrics, Inc.

(Fed. Cir. 01–M653, filed 11/21/2000, judgment

01/03/2001), In re Phonometrics, Inc. (Fed. Cir. 01–

M654, filed 11/21/2000, judgment 01/03/2001),

In re Phonometrics, Inc. (Fed. Cir. 01–M655, filed

11/21/2000, judgment 01/03/2001), resolved by

unpublished order at 2 Fed. Appx. 908, 2001 WL

69160 (denying mandamus petition for

disqualification of district court judge);

Phonometrics, Inc. v. ITT Sheraton Corp. (Fed. Cir.

02–1208, filed 02/21/2002, judgment 11/13/2002),

resolved by judgment without opinion at 50 Fed.

Appx. 992, 2002 WL 31553834 (affirming district

court judgment); Phonometrics, Inc. v. Westin Hotel

Co. (Fed. Cir. 02–1314, filed 04/03/2002, judgment

02/12/2003), resolved by opinion published at

319 F.3d 1328 (affirming defendant’s summary

judgment); and Sutton v. Interstate Hotels, LLC

(Fed. Cir. 02–1502, filed 07/19/2002, judgment

11/21/2003), Sutton v. RHI, Inc. (Fed. Cir. 02–1503,

filed 07/19/2002, judgment 11/21/2003), Sutton v.

La Quinta Inns, Inc. (Fed. Cir. 02–1504, filed

07/19/2002, judgment 11/21/2003), Sutton v.

Economy Inns of America (Fed. Cir. 02–1505, filed

07/19/2002, judgment 11/21/2003), resolved by

Phonometrics, Inc. v. Economy Inns of America, 349

F.3d 1356 (affirming Rule 11 sanctions against the

plaiAnptipfef’lslaanttt’osrbrneieyf):.The plaintiff’s 6,838-word appellant brief cites nine published opinions (two by

the U.S. Supreme Court; six by the Federal Cir-
Citing Unpublished Opinions in Federal Appeals

297

cuit, including two in related appeals; and one by

another circuit), five previous related Federal Circuit cases, and one treatise.

Appellee’s brief: The defendants’ 7,827-word

appellee brief cites 18 published opinions (three

by the U.S. Supreme Court; 12 by the Federal Circuit, including four in related appeals; two by

other circuits; and one related opinion by the

Southern District of Florida), five unpublished

opinions by the Federal Circuit in related appeals,

and four pending related appeals concerning Rule

11 sanctions against the plaintiff’s attorney.

Appellant’s reply brief: The plaintiff’s 3,196-

word reply brief cites 10 published opinions (four

by the U.S. Supreme Court; five by the Federal

Circuit, including three in related appeals; and

one by another circuit), one unpublished Federal

Circuit opinion in a related appeal, four related

Federal Circuit appeals, and one dictionary.

Opinion: (1) The court’s 20-word per curiam

judgment without opinion, Phonometrics v. Marriott International, Inc., 75 Fed. Appx. 764, 2003 WL

22129271 (Fed. Cir. 2003), cites no opinions.

According to Westlaw (04/28/2005), the court’s

judgment has not been cited elsewhere.

Zhou v. Keagy (Fed. Cir. 02–1528, filed

08/08/2002, judgment 03/11/2003).

Appeal from: Board of Patent Appeals and Interferences.

What happened: Unsuccessful patent appeal

concerning a fingerprint-recognition system.

Appellant’s brief: The appellants’ 14,765-word

brief cites 51 published opinions (four by the U.S.

Supreme Court and 47 by the Federal Circuit and

its predecessors126), one treatise, and the American

Heritage Dictionary.

Appellee’s brief: The appellees’ 9,944-word brief

cites 18 published opinions (two by the U.S. Supreme Court and 16 by the Federal Circuit and its

predecessors) and one treatise.

Appellant’s reply brief: The appellants’ 6,601-

word reply brief cites 31 published Federal Circuit

opinions.

Opinion: (1) The court’s 20-word per curiam

judgment without opinion, Zhou v. Keagy, 57 Fed.

Appx. 874, 2003 WL 1194267 (Fed. Cir. 2003), cites

no opinions. According to Westlaw (04/29/2005),

this judgment has not been cited elsewhere.

 126. Predecessors to the Court of Appeals for the

Federal Circuit are the Court of Customs and Patent

Appeals, the Court of Customs Appeals, and the appellate jurisdiction of the Court of Claims.

Glenayre Electronics, Inc. v. Jackson (Fed. Cir.

02–1537, filed 08/13/2002, judgment 05/29/2003).

Appeal from: Northern District of Illinois.

What happened: Patent appeal voluntarily dismissed. In a declaratory action by a manufacturer

against an inventor of methods of using the telephone to control other devices, the district court

denied the inventor’s motion to file counterclaims

against the plaintiff’s customers.

Appellant’s brief: The inventor’s 4,276-word appellant brief cites five published opinions (four by

the Federal Circuit and one by another circuit),

one unpublished opinion by the Northern District

of Illinois, three related district court cases (two in

the Northern District of Illinois and one in another

district), and one treatise.

The brief cites an unpublished opinion by the

Northern District of Illinois to support a statement

that “the district court abused its discretion by

failing to accord appropriate consideration to the

fact that none of Glenayre’s customers has agreed

to be bound by a judgment against Glenayre.”

(Page 15.)

Appellee’s brief: The manufacturer’s 5,538-word

appellee brief cites 18 published opinions (two by

the U.S. Supreme Court; five by the Federal Circuit; five by other circuits; three by the Northern

District of Illinois, including two in related cases;

and three by other districts), three unpublished

opinions (1 by the Federal Circuit in a related

case, one by the Northern District of Illinois in a

related case, and one by another district), three

related district court cases (two in the Northern

District of Illinois and one in another district), and

one treatise.

The brief quotes a published opinion by the

Western District of Pennsylvania, which states, in

part: “Courts have recognized that the manufacturer or supplier of an accused device, such as the

duck phones here, is the true defendant in a customer suit.” (Page 13.) In the quotation are citations to a published opinion by the First Circuit

and an unpublished opinion by the District of

Massachusetts.

Opinion: (1) The court’s 29-word order, Glenayre Electronics, Inc. v. Jackson, 66 Fed. Appx. 875,

2003 WL 21377730 (Fed. Cir. 2003), cites no opinions. According to Westlaw (04/29/2005), the

court’s order has not been cited elsewhere.

In re Pacer Technology (Fed. Cir. 02–1602, filed

09/19/2002, judgment 08/04/2003).

Appeal from: Trademark Trial and Appeal

Board.

What happened: Unsuccessful appeal of the denial of a trademark for the cap of a glue bottle.
Citing Unpublished Opinions in Federal Appeals

298

Appellant’s brief: The trademark applicant’s

4,392-word appellant brief cites seven published

court opinions (three by the U.S. Supreme Court

and four by the Federal Circuit) and two decisions

by the Trademark Trial and Appeal Board.

Appellee’s brief: The Patent and Trademark Office’s 4,309-word appellee brief cites 20 published

court opinions (four by the U.S. Supreme Court,

14 by the Federal Circuit, and two by other circuits).

Appellant’s reply brief: The trademark applicant’s 2,319-word reply brief cites two published

Federal Circuit opinions.

Opinion: (3) The court’s published 2,588-word

signed opinion, In re Pacer Technology, 338 F.3d

1348 (Fed. Cir. 2003) (four headnotes), cites 15

published court opinions (three by the U.S. Supreme Court and 12 by the Federal Circuit) and

the decision by the Trademark Trial and Appeal

Board appealed. According to Westlaw

(04/29/2005), the court’s opinion has been cited

in two Federal Circuit opinions (1 published and

one unpublished), 13 decisions by the Trademark

Trial and Appeal Board, 12 secondary sources,

and one appellate brief in a Federal Circuit case.

De Vries v. Shell Exploration and Production Co.

(Fed. Cir. 03–1107, filed 11/22/2002, judgment

08/11/2003).

Appeal from: Southern District of Texas.

What happened: Summary judgment against

patent plaintiffs—an individual and a corporation—affirmed in a case concerning helical spoilers on subsea pipelines. The selected case is the

individual’s appeal, which was consolidated with

the corporation’s appeal, Submarine Pipeline Spoilers (U.S.A.), Inc. v. Shell Exploration and Production

Co. (Fed. Cir. 03–1093, filed 11/21/2002, judgment

08/11/2003).

Appellant’s brief: The plaintiffs’ 5,867-word appellant brief cites 29 published opinions (five by

the U.S. Supreme Court, 20 by the Federal Circuit,

three by other circuits, and one by a district court)

and one dictionary.

Appellee’s brief: The defendant’s 12,334-word

appellee brief cites 31 published opinions (1 by

the U.S. Supreme Court, 28 by the Federal Circuit,

and two by another circuit) and four dictionaries.

Appellant’s reply brief: The plaintiffs’ 6,706-

word reply brief cites 24 published opinions (five

by the U.S. Supreme Court and 19 by the Federal

Circuit).

Opinion: (1) The court’s 20-word unpublished

per curiam judgment without opinion, Submarine

Pipeline Spoilers (U.S.A.), Inc. v. Shell Exploration

and Production Co., 71 Fed. Appx. 851, 2003 WL

21949843 (Fed. Cir. 2003), cites no opinions. According to Westlaw (04/29/2005), the court’s

judgment has not been cited elsewhere.

Eazypower Corp. v. ICC Innovative Concepts

Corp. (Fed. Cir. 03–1129, filed 11/29/2002,

judgment 01/31/2003).

Appeal from: Northern District of Illinois.

What happened: Appeal of the denial of summary judgment dismissed for lack of jurisdiction.

The appellant was sanctioned $1,873.75 on

05/01/2003 for filing the appeal.

Opinion: (2) The court’s unpublished 238-word

signed order, Eazypower Corp. v. ICC Innovative

Concepts Corp., 56 Fed. Appx. 493, 2003 WL 343357

(Fed. Cir. 2003) (no headnotes), cites no opinions.

According to Westlaw (10/21/2004), the court’s

order has not been cited elsewhere.

Astra Aktiebolag v. Cheminor Drugs, Ltd. (Fed.

Cir. 03–1135, filed 12/04/2002, judgment

12/11/2003).

Appeal from: Southern District of New York.

What happened: Unsuccessful appeal of a finding of infringement of patents for enteric coating

of pills to protect them from stomach acid. The

plaintiffs cross-appealed against other defendants

in consolidated cases.

Related cases: The lead case in this consolidated

appeal was Astra Aktiebolag v. Andrx Pharmaceuticals, Inc. (Fed. Cir. 03–1101, filed 11/20/2002,

judgment 12/11/2003). Three consolidated appeals involved the same defendants as the selected case, Astra Aktiebolag v. Andrx Pharmaceuticals, Inc. (Fed. Cir. 03–1133, filed 12/04/2002,

judgment 12/11/2003), Astra Aktiebolag v. Cheminor Drugs, Ltd. (Fed. Cir. 03–1134, filed

12/04/2002, judgment 12/11/2003), and Astra

Aktiebolag v. Andrx Pharmaceuticals, Inc. (Fed. Cir.

03–1136, filed 12/04/2002, judgment 12/11/2003).

Ten consolidated appeals involved other defendants, Astra Aktiebolag v. Andrx Pharmaceuticals,

Inc. (Fed. Cir. 03–1102, filed 11/20/2002, judgment 12/11/2003), Astra Aktiebolag v. Andrx Pharmaceuticals, Inc. (Fed. Cir. 03–1103, filed

11/20/2002, judgment 12/11/2003), Astra Aktiebolag v. Kremers Urban Development Co. (Fed. Cir. 03–

1104, filed 11/20/2002, judgment 12/11/2003),

Astra Aktiebolag v. Kremers Urban Development Co.

(Fed. Cir. 03–1105, filed 11/20/2002, judgment

12/11/2003), Astra Aktiebolag v. Kremers Urban

Development Co. (Fed. Cir. 03–1106, filed

11/20/2002, judgment 12/11/2003), Astra Aktiebolag v. Genpharm Inc. (Fed. Cir. 03–1131, filed

12/04/2002, judgment 12/11/2003), Astra Aktiebolag v. Genpharm Inc. (Fed. Cir. 03–1132, filed
Citing Unpublished Opinions in Federal Appeals

299

12/04/2002, judgment 12/11/2003), Astra Aktiebolag v. Genpharm Inc. (Fed. Cir. 03–1171, filed

12/18/2002, judgment 12/11/2003), Astra Aktiebolag v. Genpharm Inc. (Fed. Cir. 03–1172, filed

12/18/2002, judgment 12/11/2003), and Astra

Aktiebolag v. Andrx Pharmaceuticals, Inc. (Fed. Cir.

03–1173, filed 12/18/2002, judgment 12/11/2003).

Appellant’s brief: The defendants’ 14,708-word

appellant brief cites 41 published opinions (two

by the U.S. Supreme Court, 28 by the Federal Circuit, nine by other circuits, the appealed decision

by the Southern District of New York, and one by

another district), eight related cases in the Southern District of New York, one treatise, and one

dictionary.

Appellee’s brief: The plaintiffs’ 19,882-word appellee and cross-appellant brief cites 70 published

opinions (five by the U.S. Supreme Court, 58 by

the Federal Circuit, four by other circuits, two by

district courts, and one by the court of claims),

one unpublished opinion by a district court, one

treatise, two dictionaries, and one other book.

In responding to appeals by other defendants

in consolidated cases, the brief states that two are

inapposite. One of these is a published Federal

Circuit opinion and the other is an unpublished

opinion by the District of Delaware. According to

the brief, in the latter case, “the court did not, as

Defendants urge, use foreign prosecution statements to vary or contradict the plain meaning of

the claims.” (Page 39.)

Appellant’s reply brief: The defendants’ 6,750-

word reply brief cites 24 published opinions (1 by

the U.S. Supreme Court, 21 by the Federal Circuit,

one by a district court, and one by the court of

claims) and two treatises.

Opinion: (2) The court’s unpublished 3,074-

word signed opinion, In re Omeprazole Patent Litigation, 84 Fed. Appx. 76, 2003 WL 22928641 (Fed.

Cir. 2003) (eight headnotes), cites 10 published

opinions (1 by the U.S. Supreme Court, eight by

the Federal Circuit, and the appealed opinion by

the Southern District of New York) and one dictionary. According to Westlaw (04/29/2005), the

court’s opinion has been cited in one unpublished

opinion by the Southern District of New York, one

secondary source, and one trial court brief in another district.

Walker v. Department of the Army (Fed. Cir. 02–

3123, filed 02/07/2002, judgment 06/07/2002).

Appeal from: Merit Systems Protection Board.

What happened: Unsuccessful pro se appeal of a

decision by the Merit Systems Protection Board’s

affirmance of the Army’s dismissal of a civilian

employee.

Respondent’s brief: The Army’s 3,250-word informal respondent brief cites seven published

opinions (six by the Federal Circuit and one by

the Court of Claims).

Opinion: (2) The court’s unpublished 746-word

per curiam opinion, Walker v. Department of the

Army, 35 Fed. Appx. 453, 2002 WL 1272018 (Fed.

Cir. 2002) (1 headnote), cites one published Federal Circuit opinion and the unpublished decision

by the Merit Systems Protection Board appealed.

According to Westlaw (04/23/2005), the court’s

opinion has been cited in one secondary source.

Guzman v. Office of Personnel Management (Fed.

Cir. 02–3173, filed 03/19/2002, judgment

12/17/2002).

Appeal from: Merit Systems Protection Board.

What happened: Unsuccessful pro se appeal of a

decision by the Merit Systems Protection Board,

Guzman v. Office of Personnel Management, 91

M.S.P.R. 129 (2001) (table). A former employee of

Clark Air Force Base in the Philippines challenged

the Office of Personnel Management’s denial of

benefits under the Civil Service Retirement System under the Whistleblower Protection Act, but

that Act does not provide relief for former employees.

Respondent’s brief: The government’s 1,455-

word informal respondent brief cites five published opinions (two by the U.S. Supreme Court

and three by the Federal Circuit) and two unpublished Federal Circuit opinions.

One unpublished Federal Circuit opinion cited

by the government concerns an earlier phase of

the petitioner’s case. The government cited the

other unpublished Federal Circuit opinion in a

footnote to point out that the petitioner should

not have cited it, because the court forbids citations to its unpublished opinions, and to point out

that it would support the government’s position

anyway.

Opinion: (2) The court’s unpublished 1,362-

word per curiam decision, Guzman v. Office of Personnel Management, 53 Fed. Appx. 927, 2002 WL

31863832 (Fed. Cir. 2002) (1 headnote), cites one

published Federal Circuit opinion and one unpublished Federal Circuit opinion. The unpublished

opinion cited concerns an earlier phase of the petitioner’s case. According to Westlaw (04/29/2005),

the opinion in the selected case has been cited in

two secondary sources.

Bronson v. Merit Systems Protection Board (Fed.

Cir. 02–3181, filed 04/02/2002, judgment

04/08/2004).

Appeal from: Merit Systems Protection Board.
Citing Unpublished Opinions in Federal Appeals

300

What happened: Unsuccessful pro se appeal of a

dismissal for lack of jurisdiction, Bronson v. Office

of Personnel Management, 91 M.S.P.R. 127 (2002)

(table). The petitioner challenged the Office of

Personnel Management’s refund of $19,644.72 in

retirement deductions to his spouse, but OPM had

not yet issued a final decision. The court initially

dismissed the appeal for failure to prosecute,

Bronson v. Office of Personnel Management, 47 Fed.

Appx. 932, 2002 WL 31156061 (Fed. Cir. 2002), but

reconsidered, Bronson v. Office of Personnel Management, 74 Fed. Appx. 57, 2003 WL 22071565

(Fed. Cir. 2003).

Respondent’s brief: The government’s 1,585-

word informal respondent brief cites seven published Federal Circuit opinions and two published

opinions by the Merit Systems Protection Board.

Opinion: (2) The court’s unpublished 611-word

per curiam decision, Bronson v. Merit Systems Protection Board, 95 Fed. Appx. 342, 2004 WL 842755

(Fed. Cir. 2004) (no headnotes), cites three published Federal Circuit opinions and two opinions

by the Merit Systems Protection Board (1 published and one unpublished). The unpublished

opinion cited is from an earlier phase of this case.

According to Westlaw (04/29/2005), the court’s

opinion has not been cited elsewhere.

Ratcliff v. Merit Systems Protection Board (Fed.

Cir. 02–3185, filed 04/05/2002, judgment

02/05/2003).

Appeal from: Merit Systems Protection Board.

What happened: Unsuccessful pro se appeal of

the Merit Systems Protection Board’s dismissing

as untimely a petition to review the cancellation

of a promotion.

Respondent’s brief: The board’s 5,500-word respondent brief cites 15 published court opinions

(1 by the U.S. Supreme Court and 14 by the Federal Circuit) and four published decisions by the

Merit Systems Protection Board.

Opinion: (2) The court’s unpublished 519-word

per curiam opinion, Ratcliff v. Merit Systems Protection Board, 55 Fed. Appx. 942, 2003 WL 262355

(Fed. Cir. 2003) (no headnotes), cites four published Federal Circuit opinions. According to

Westlaw (04/29/2005), the court’s opinion has

been cited in one secondary source.

Cruise v. Department of Homeland Security (Fed.

Cir. 02–3188, filed 04/10/2002, judgment

07/14/2003).

Appeal from: Merit Systems Protection Board.

What happened: Unsuccessful pro se appeal of a

decision by the Merit Systems Protection Board

that a Secret Service investigator was not wrongfully terminated.

Respondent’s brief: The government’s 5,978-

word informal respondent brief cites 27 published

court opinions (two by the U.S. Supreme Court, 23

by the Federal Circuit, and two by the court of

claims) and two published decisions by the Merit

Systems Protection Board.

Opinion: (2) Initially the appeal was dismissed

by unpublished order, Cruise v. Department of the

Treasury, 46 Fed. Appx. 963, 2002 WL 31133838

(Fed. Cir. 2002), citing no opinions, for lack of

prosecution. One month later, the court reopened

the case by unpublished order, Cruise v. Department of the Treasury, 50 Fed. Appx. 432, 2002 WL

31439797 (Fed. Cir. 2002), citing no opinions. The

court ultimately resolved the appeal by an unpublished 519-word per curiam opinion, Cruise v. Department of Homeland Security, 70 Fed. Appx. 555,

2003 WL 21675120 (Fed. Cir. 2003) (two headnotes), citing five published Federal Circuit opinions and the unpublished decision by the Merit

Systems Protection Board appealed. According to

Westlaw (04/24/2005), the court’s opinion has

been cited in one appellate brief in one case in

California’s court of appeal.

Kraushaar v. Department of Agriculture (Fed. Cir.

02–3192, filed 04/10/2002, judgment 03/10/2003).

Appeal from: Merit Systems Protection Board.

What happened: Unsuccessful pro se appeal of a

decision by the Merit Systems Protection Board

that a Lake Tahoe forestry technician was not

wrongfully relieved of law enforcement responsibilities when he disclosed that he had been advised by a counselor not to carry a firearm in the

presence of his supervisor, with whom there was

considerable tension.

Respondent’s brief: The government’s 6,140-

word respondent brief cites 15 published court

opinions (1 by the U.S. Supreme Court, 12 by the

Federal Circuit, and two by the court of claims)

and 17 published decisions by the Merit Systems

Protection Board.

Opinion: (2) The court’s unpublished 1,978-

word per curiam decision, Kraushaar v. Department

of Agriculture, 60 Fed. Appx. 295, 2003 WL 1194290

(Fed. Cir. 2003) (three headnotes), cites seven published court opinions (1 by the U.S. Supreme

Court and six by the Federal Circuit) and the unpublished decision by the Merit Systems Protection Board appealed. According to Westlaw

(04/24/2005), the court’s decision has been cited

in one secondary source.
Citing Unpublished Opinions in Federal Appeals

301

Comulada v. Department of the Army (Fed. Cir.

02–3288, filed 06/12/2002, judgment 10/02/2002).

Appeal from: Merit Systems Protection Board.

What happened: Summary affirmance in a pro

se appeal of the Merit Systems Protection Board’s

refusal to review the Army’s five-day suspension

of the petitioner because the Board has jurisdiction to review only suspensions of more than two

weeks.

Opinion: (2) The court’s unpublished 238-word

signed order, Comulada v. Department of the Army,

49 Fed. Appx. 890, 2002 WL 31370057 (Fed. Cir.

2002) (no headnotes), cites one published Federal

Circuit opinion. According to Westlaw

(04/29/2005), the court’s order has not been cited

elsewhere.

Campion v. Merit Systems Protection Board (Fed.

Cir. 02–3332, filed 07/16/2002, judgment

04/17/2003).

Appeal from: Merit Systems Protection Board.

What happened: Unsuccessful pro se appeal of a

decision by the Merit Systems Protection Board

that it did not have jurisdiction over the case because the petitioner was not veteran-eligible.

Respondent’s brief: The board’s 3,009-word informal respondent brief cites seven published

opinions (1 by the U.S. Supreme Court and six by

the Federal Circuit) and the decision by the Merit

Systems Protection Board appealed.

Opinion: (3) The court’s published 2,124-word

signed opinion, Campion v. Merit Systems Protection Board, 326 F.3d 1210 (Fed. Cir. 2003) (six headnotes), cites eight published court opinions (three

by the U.S. Supreme Court and five by the Federal

Circuit) and three unpublished orders by the

Merit Systems Protection Board in this case.

According to Westlaw (05/02/2005), the court’s

opinion has been cited in four Federal Circuit

opinions (1 published and three unpublished),

two published decisions by the Merit Systems

Protection Board, six secondary sources, and two

appellate briefs in two Federal Circuit cases.

Powers v. Department of the Treasury (Fed. Cir.

02–3377, filed 09/03/2002, judgment 05/13/2003).

Appeal from: Merit Systems Protection Board.

What happened: Unsuccessful pro se appeal by

employee dismissed by the Internal Revenue

Service for repeatedly accessing taxpayer records

without authorization.

Respondent’s brief: The Department of the

Treasury’s 2,471-word informal respondent brief

cites 21 published court opinions (16 by the Federal Circuit, one by another circuit, and four by

the Court of Claims) and one published decision

by the Merit Systems Protection Board.

Opinion: (2) The court’s unpublished 584-word

per curiam decision, Powers v. Department of the

Treasury, 63 Fed. Appx. 480, 2003 WL 21085364

(Fed. Cir. 2003) (two headnotes), cites three published Federal Circuit opinions and the unpublished decision by the Merit Systems Protection

Board that was appealed. According to Westlaw

(05/02/2005), the court’s decision has been cited

in two secondary sources.

Deaton v. Office of Personnel Management (Fed.

Cir. 03–3046, filed 11/21/2002, judgment

04/11/2003).

Appeal from: Merit Systems Protection Board.

What happened: Unsuccessful pro se appeal of

the denial of disability retirement under the Federal Employees’ Retirement System.

Respondent’s brief: The Office of Personnel

Management’s 1,550-word informal respondent

brief cites three published court opinions (1 by the

U.S. Supreme Court and two by the Federal Circuit) and the unpublished decision of the Merit

Systems Protection Board appealed.

Opinion: (2) The court’s unpublished 844-word

per curiam opinion, Deaton v. Office of Personnel

Management, 67 Fed. Appx. 597, 2003 WL 1875577

(Fed. Cir. 2003) (two headnotes), cites four published court opinions (1 by the U.S. Supreme

Court and three by the Federal Circuit) and the

unpublished decision of the Merit Systems Protection Board appealed. According to Westlaw

(05/02/2005), the court’s opinion has been cited

in one secondary source.

Conaway v. United States Postal Service (Fed.

Cir. 03–3069, filed 12/05/2002, judgment

01/08/2003).

Appeal from: Merit Systems Protection Board.

What happened: Appeal dismissed for failure to

prosecute.

Opinion: (1) The court’s 47-word order,

Conaway v. United States Postal Service, 55 Fed.

Appx. 565, 2003 WL 152381 (Fed. Cir. 2003), cites

no opinions. According to Westlaw (05/02/2005),

the court’s order has been cited in two decisions

of the Merit Systems Protection Board.

Easterday v. Office of Personnel Management

(Fed. Cir. 03–3100, filed 12/30/2002, judgment

04/23/2003).

Appeal from: Merit Systems Protection Board.

What happened: Pro se appeal of a decision by

the Merit Systems Protection Board, Easterday v.

Office of Personnel Management, 93 M.S.P.R. 301
Citing Unpublished Opinions in Federal Appeals

302

(2002) (table), dismissed for failure to pay the

docketing fee or file a brief.

Opinion: (1) The court’s 62-word order, Easterday v. Office of Personnel Management, 64 Fed.

Appx. 215, 2003 WL 21129924 (Fed. Cir. 2003),

cites no opinions. According to Westlaw

(05/02/2005), the court’s order has not been cited

elsewhere.

Cienega Gardens v. United States (Fed. Cir. 02–

5050, filed 01/18/2002, judgment 06/12/2003).

Appeal from: Court of Federal Claims.

What happened: Successful appeal of summary

judgment granted to the government. The court of

appeals found a regulatory taking in a statute that

voided real estate developers’ rights to prepay

federally insured mortgages for low-income housing in order to extinguish low-income restrictions.

Related cases: In Cienega Gardens v. United States,

265 F.3d 1237 (Fed. Cir. 2001), the court resolved

Cienega Gardens v. United States (Fed. Cir. 00–5104,

filed 07/10/2000, judgment 09/18/2001), reversing the Court of Federal Claims’ award of summary judgment to the government on the ground

that the takings claims were not ripe. In Cienega

Gardens v. United States, 194 F.3d 1231 (Fed. Cir.

1998), the court reversed a trial court judgment of

$3,061,107 in favor of the developers on a contract

theory, resolving United States v. Cienega Gardens

(Fed. Cir. 97–5126) (appeal) and Sherman Park v.

United States (Fed. Cir. 97–5134) (cross-appeal).

Appellant’s brief: The developers’ 16,699-word

appellant brief cites 46 published opinions (26 by

the U.S. Supreme Court; 11 by the Federal Circuit,

of which two are earlier opinions in this case;

seven by the Court of Federal Claims and the federal claims court, of which four are earlier opinions in this case; one by a district court; and one

by New Jersey’s supreme court).

Appellee’s brief: The government’s 15,902-word

appellee brief cites 54 published opinions (20 by

the U.S. Supreme Court; 18 by the Federal Circuit,

of which two are earlier opinions in this case; two

by other circuits; 12 by the Court of Federal

Claims and the federal Claims Court; one by a

district court; and one by New Jersey’s supreme

court) and one treatise.

Appellants’ reply brief: The developers’ 7,249-

word reply brief cites 31 published opinions (16

by the U.S. Supreme Court; seven by the Federal

Circuit, of which one is an earlier opinion in this

case; seven by the Court of Federal Claims and the

federal Claims Court, of which one is an earlier

opinion in this case; and one by California’s court

of appeal) and two treatises.

Opinion: (3) The court’s published 19,084-word

signed opinion, Cienega Gardens v. United States,

331 F.3d 1319 (Fed. Cir. 2003) (27 headnotes), cites

46 published opinions (22 by the U.S. Supreme

Court; 15 by the Federal Circuit, of which two are

earlier opinions in this case; one by another circuit; and eight by the Court of Federal Claims and

Court of Claims, of which one is an earlier opinion in this case), the unpublished opinion of the

lower court, the Restatement (Third) of Property,

and one treatise. According to Westlaw

(05/03/2005), the court’s opinion has been cited

in 27 published opinions (five in the Federal Circuit, two in other circuits, and 20 in the Federal

Court of Claims), four unpublished opinions (1 in

another district and three in the Federal Court of

Claims), 15 secondary sources, two U.S. Supreme

Court briefs in two cases, nine appellate briefs in

nine cases (seven in the Federal Circuit, one in

another circuit, and one in Michigan’s supreme

court), one trial court brief in the Northern District of Illinois, and one petition for a writ of certiorari to the Supreme Court.

Nicon, Inc. v. United States (Fed. Cir. 02–5056,

filed 01/29/2002, judgment 03/22/2002).

Appeal from: Court of Federal Claims.

What happened: Civil appeal of partial summary judgment dismissed as premature.

Opinion: (2) The court’s unpublished 132-word

signed order, Nicon, Inc. v. United States, 33 Fed.

Appx. 506, 2002 WL 553775 (Fed. Cir. 2002) (no

headnotes), cites no opinions. According to Westlaw (05/02/2005), the court’s order has been cited

in one secondary source.

Simmons v. New York (Fed. Cir. 02–5100, filed

04/16/2002, judgment 11/01/2002).

Appeal from: Court of Federal Claims.

What happened: Dismissal summarily affirmed

in a pro se appeal. The plaintiffs alleged improper

conduct by a New York penitentiary nurse, but

their case was dismissed for failure to state any

claims against the United States.

Related cases: Dismissed by the same opinion

were coplaintiffs’ individual pro se appeals, Abney

v. United States (Fed. Cir. 02–5101, filed

04/16/2002, judgment 11/01/2002) (summarily

affirmed), Jackson v. United States (Fed. Cir. 02–

5102, filed 04/16/2002, judgment 11/01/2002)

(summarily affirmed), and Delisser v. United States

(Fed. Cir. 02–5103, filed 04/16/2002, judgment

11/01/2002) (summarily affirmed).

Opinion: (2) The court’s unpublished 236-word

signed order, Simmons v. New York, 50 Fed. Appx.

988, 2002 WL 31553790 (Fed. Cir. 2002) (no head-
Citing Unpublished Opinions in Federal Appeals

303

notes), cites one published Federal Circuit opinion. According to Westlaw (05/02/2005), the

court’s opinion has been cited in one secondary

source.

Federal Deposit Insurance Corp. v. United States

(Fed. Cir. 02–5104, filed 04/19/2002, judgment

07/25/2003).

Appeal from: Court of Federal Claims.

What happened: Appeal by the FDIC of its dismissal as a plaintiff for lack of standing dismissed

as moot. WestFed Holdings, Western Federal Savings and Loan Association, the Resolution Trust

Corporation, and the FDIC sued the United States,

claiming that the Financial Institutions Reform,

Recovery, and Enforcement Act of 1989 (FIRREA)

breached a contract.

Related cases: Federal Deposit Insurance Corp. v.

United States (Fed. Cir. 02–5078, filed 03/05/2002,

judgment 06/02/2003) (unsuccessful appeal) and

Federal Deposit Insurance Corp. v. United States

(Fed. Cir. 02–5079, filed 03/05/2002, judgment

06/02/2003) (unsuccessful appeal). In addition,

the appellant claimed that it was a party in approximately 25 cases pending in the Court of Federal Claims related to the Supreme Court’s decision in United States v. Winstar Corp., 518 U.S. 839

(1996). The appellee claimed that there were approximately 100 pending cases related to Winstar

in all.

Appellant’s brief: The FDIC’s 14,420-word appellant brief cites 82 published opinions (15 by the

U.S. Supreme Court; 20 by the Federal Circuit; 14

by other circuits; 23 by the Court of Federal

Claims, including one in the case appealed; eight

by district courts; one by Delaware’s supreme

court; and one by Delaware’s court of chancery),

two unpublished opinions (1 by the Court of Federal Claims and one by a district court), the two

related Federal Circuit appeals, four treatises, and

the Restatement (Second) of Contracts.

The brief cites an unpublished opinion by the

Eastern District of Louisiana and a published

opinion by the Fourth Circuit to support the

statement that “the FIRREA limitations period is

tollable by agreement, the terms of which agreements will be enforced.” (Page 61.)

The brief cites an unpublished opinion by the

Court of Federal Claims as collecting cases relevant to the brief’s statement, “Whether due diligence has been exercised is determined on a caseby-case basis.” (Page 59.)

Appellee’s brief: The 10,903-word appellee brief

by the United States cites 82 published opinions

(17 by the U.S. Supreme Court; 21 by the Federal

Circuit; 18 by other circuits; 20 by the Court of

Federal Claims, including one in the case appealed; five by district courts; and one by Washington’s court of appeals), two unpublished opinions (1 by another circuit and one by a district

court), the two related Federal Circuit appeals,

and one treatise.

The brief cites an unpublished opinion by the

District of Massachusetts and a published opinion

by the Sixth Circuit to support the statement,

“Common examples are a breach of contract claim

or a takings claim. And while parties often advance several theories of recovery in connection

with their claims, those theories of recovery are

not themselves claims.” (Page 25.) The District of

Massachusetts opinion is described parenthetically as “dismissing counts of a complaint because

they ‘do not, apparently, set out separate causes

of action; rather, they describe various theories of

damages.’”

Appellant’s reply brief: The FDIC’s 7,134-word

reply brief cites 39 published opinions (10 by the

U.S. Supreme Court, nine by the Federal Circuit,

nine by other circuits, seven by the Court of Federal Claims, four by district courts, and one by

Delaware’s supreme court), one unpublished

opinion by a district court, and three treatises.

The appellant cited the same unpublished

opinion by the Eastern District of Louisiana and

the same published opinion by the Fourth Circuit

as it cited in its appellant brief to support the

statement, “The FIRREA statute is tollable by

agreement.” (Page 30.)

Opinion: (1) The court’s unpublished 16-word

order, WestFed Holdings, Inc. v. United States, 70

Fed. Appx. 589, 2003 WL 21774148 (Fed. Cir.

2003), cites no opinions. According to Westlaw

(04/24/2005), the court’s order has not been cited

elsewhere.

Paalan v. United States (Fed. Cir. 02–5108, filed

05/10/2002, judgment 08/02/2002).

Appeal from: Court of Federal Claims.

What happened: Dismissed pro se appeal from a

published decision, Paalan v. United States, 51 Fed.

Cl. 738 (2002). The plaintiff sought military back

pay and other compensation, including takings

remedies. The trial court’s decision was not appealable, however, because it only dismissed

some of the plaintiff’s claims.

Opinion: (2) The court’s unpublished 373-word

signed order, Paalan v. United States, 44 Fed. Appx.

494, 2002 WL 1906755 (Fed. Cir. 2002) (no headnotes), cites one published Federal Circuit opinion. According to Westlaw (05/02/2005), the

court’s opinion has not been cited elsewhere.
Citing Unpublished Opinions in Federal Appeals

304

Gibson v. United States (Fed. Cir. 02–5178, filed

09/25/2002, judgment 02/04/2003).

Appeal from: Court of Federal Claims.

What happened: Unsuccessful pro se appeal of

the dismissal of plaintiff’s complaint for lack of

jurisdiction. The plaintiff had sought reward

money for providing the government with

information about terrorism.

Appellee’s brief: The government’s 1,725-word

informal appellee brief cites 11 published court

opinions (three by the U.S. Supreme Court, six by

the Federal Circuit, and two by the Court of Federal Claims) and the case in the Court of Federal

Claims appealed.

Opinion: (2) The court’s unpublished 473-word

signed opinion, Gibson v. United States, 55 Fed.

Appx. 938, 2003 WL 250060 (Fed. Cir. 2003) (no

headnotes), cites four published opinions (1 by

the U.S. Supreme Court and three by the Federal

Circuit). According to Westlaw (05/02/2005), the

court’s opinion has been cited in one secondary

source.

Seiber v. United States (Fed. Cir. 03–5010, filed

11/01/2002, judgment 04/19/2004).

Appeal from: Court of Federal Claims.

What happened: Unsuccessful appeal of summary judgment in favor of the government in an

action challenging the denial of a logging permit

as an unconstitutional taking.

Appellant’s brief: The plaintiffs’ 6,156-word appellant brief cites 30 published opinions (17 by the

U.S. Supreme Court; six by the Federal Circuit;

one by another circuit; two by the Court of Federal Claims, including the opinion appealed; three

by Oregon’s supreme court; and one by Oregon’s

court of appeals), one unpublished memorandum

order by a district court in a related case, a complaint filed by the plaintiffs in another district

court, four law review articles, and two reference

books.

Appellee’s brief: The government’s 11,262-word

appellee brief cites 46 published opinions (16 by

the U.S. Supreme Court; 14 by the Federal Circuit;

two by other circuits; two by the Court of Federal

Claims, including the opinion appealed; 11 by

Oregon’s supreme court; and one by Oregon’s

court of appeals), one unpublished opinion by

Oregon’s court of appeals in a related case, and

one related pending case in Oregon’s circuit court.

Amicus brief: Several conservation societies

filed a 6,966-word amicus curiae brief, citing 55

published opinions (18 by the U.S. Supreme

Court, nine by the Federal Circuit, six by other

circuits, six by the Court of Federal Claims, three

by Oregon’s supreme court, two by Oregon’s

court of appeals, one by Alaska’s supreme court,

one by New Jersey’s supreme court, one by New

York’s supreme court, one by New York’s appellate division, one by Pennsylvania’s supreme

court, one by Rhode Island’s supreme court, two

by Washington’s supreme court, two by Wisconsin’s supreme court, and one by Florida’s district

court of appeal), one depublished opinion by California’s court of appeal, four legal articles, one

treatise, and the Restatement (Second) of Torts.

The brief cites an opinion that was published

by California’s court of appeal, but, as the brief

acknowledges, was ordered depublished by California’s supreme court, as an example of a court

specifically recognizing “that the doctrine of public ownership of wildlife represents a ‘background

principle’ of property law which bars a taking

claim based on regulations designed to protect

wildlife from harm.” (Page 12.)

Appellant’s reply brief: The plaintiffs’ 5,718-

word reply brief cites 32 published opinions (17

by the U.S. Supreme Court, two by the Federal

Circuit, two by other circuits, seven by Oregon’s

supreme court, two by Oregon’s court of appeals,

one by Arkansas’s supreme court, and one by

Wisconsin’s supreme court), a related case in Oregon’s circuit court, three legal articles, and one

legal history text.

Opinion: (3) The court’s published 7,813-word

signed opinion, Seiber v. United States, 364 F.3d

1356 (Fed. Cir. 2004)

127 (20 headnotes), cites 41

published opinions (16 by the U.S. Supreme

Court, 20 by the Federal Circuit, one by another

circuit, the opinion by the Court of Federal Claims

appealed, one by Oregon’s supreme court, and

two by Oregon’s court of appeals), and two unpublished opinions related to this appeal (1 by

Oregon’s court of appeals and one by Oregon’s

circuit court). According to Westlaw

(04/25/2005), the court’s opinion has been cited

in three published opinions by the Federal Circuit,

three published opinions by the Court of Federal

Claims, six secondary sources, four briefs in three

U.S. Supreme Court cases (including the appellants’ petition for a writ of certiorari in this case),

and two appellate briefs in two cases (1 in the

Federal Circuit and one in another circuit).

Schickler v. United States (Fed. Cir. 03–5035, filed

12/13/2002, judgment 07/22/2003).

Appeal from: Court of Federal Claims.

What happened: Plaintiff’s pro se appeal dismissed for failure to file a brief.

 127. Cert. denied, 125 S. Ct. 113 (2004).
Citing Unpublished Opinions in Federal Appeals

305

Opinion: (1) The court’s 45-word order, Schickler v. United States, 70 Fed. Appx. 584, 2003 WL

21774141 (Fed. Cir. 2003), cites no opinions. According to Westlaw (05/03/2005), the court’s order has been cited in one secondary source.

Johnson v. Principi (Fed. Cir. 02–7048, filed

01/11/2002, judgment 10/25/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal dismissed because of recently decided cases.

Opinion: (1) The court’s 17-word order, Johnson

v. Principi, 115 Fed. Appx. 59, 2004 WL 2792026

(Fed. Cir. 2004), cites no opinions. According to

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.

Winters v. Principi (Fed. Cir. 02–7064, filed

01/11/2002, judgment 10/22/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal dismissed because of recently decided cases.

Opinion: (1) The court’s 17-word order, Winters

v. Principi, 115 Fed. Appx. 437, 2004 WL 2924311

(Fed. Cir. 2004), cites no opinions. According to

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.

Butler v. Principi (Fed. Cir. 02–7074, filed

01/11/2002, judgment 07/21/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order, Butler

v. Principi, 106 Fed. Appx. 54, 2004 WL 1765411

(Fed. Cir. 2004), cites no opinions. According to

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.

Thurman v. Principi (Fed. Cir. 02–7083, filed

01/11/2002, judgment 06/14/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order,

Thurman v. Principi, 103 Fed. Appx. 374, 2004 WL

1531857 (Fed. Cir. 2004), cites no opinions. According to Westlaw (05/03/2005), the court’s order has not been cited elsewhere.

Walker v. Principi (Fed. Cir. 02–7105, filed

01/14/2002, judgment 07/27/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order, Walker

v. Principi, 107 Fed. Appx. 203, 2004 WL 1859646

(Fed. Cir. 2004), cites no opinions. According to

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.

Davis v. Principi (Fed. Cir. 02–7163, filed

02/13/2002, judgment 07/21/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order, Davis v.

Principi, 106 Fed. Appx. 59, 2004 WL 1765491 (Fed.

Cir. 2004), cites no opinions. According to Westlaw (05/03/2005), the court’s order has not been

cited elsewhere.

Kirckof v. Principi (Fed. Cir. 02–7164, filed

02/13/2002, judgment 06/14/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order, Kirckof

v. Principi, 102 Fed. Appx. 705, 2004 WL 1531887

(Fed. Cir. 2004), cites no opinions. According to

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.

Lyng v. Principi (Fed. Cir. 02–7189, filed

02/22/2002, judgment 06/09/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order, Lyng v.

Principi, 101 Fed. Appx. 830, 2004 WL 1385914

(Fed. Cir. 2004), cites no opinions. According to

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.

Creech v. Principi (Fed. Cir. 02–7192, filed

02/22/2002, judgment 12/30/2003).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 30-word order, Creech

v. Principi, 85 Fed. Appx. 750, 2003 WL 23170127

(Fed. Cir. 2003), cites no opinions. According to
Citing Unpublished Opinions in Federal Appeals

306

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.

Cervenka v. Principi (Fed. Cir. 02–7245, filed

03/22/2002, judgment 06/10/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order, Cervenka v. Principi, 101 Fed. Appx. 834, 2004 WL

1386155 (Fed. Cir. 2004), cites no opinions. According to Westlaw (05/03/2005), the court’s order has not been cited elsewhere.

Mellinger v. Principi (Fed. Cir. 02–7265, filed

03/25/2002, judgment 10/02/2002).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Dismissed pro se appeal of a

decision by the Court of Appeals for Veterans

Claims, Mellinger v. Principi, 18 Vet. App. 17

(2002). The claimant sought retroactive benefits

for her husband back to 1958 for heart disease that

had erroneously been determined noncompensable, but the Court of Veterans Affairs determined that it could award only two years of

retroactive benefits. The court of appeals determined that it did not have jurisdiction to review

that decision.

Opinion: (2) The court’s unpublished 491-word

signed order, Mellinger v. Principi, 49 Fed. Appx.

898, 2002 WL 31369694 (Fed. Cir. 2002) (1 headnote), cites no opinions. According to Westlaw

(05/03/2005), the court’s opinion has been cited

in one secondary source.

Reed v. Principi (Fed. Cir. 02–7290, filed

03/27/2002, judgment 07/26/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order, Reed v.

Principi, 106 Fed. Appx. 720, 2004 WL 1853445

(Fed. Cir. 2004), cites no opinions. According to

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.

Cosme v. Principi (Fed. Cir. 02–7306, filed

04/04/2002, judgment 10/15/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal dismissed.

Opinion: (1) The court’s order is not on Westlaw.

Snyder v. Principi (Fed. Cir. 02–7335, filed

05/13/2002, judgment 02/11/2003).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal remanded in

light of a recent decision by the court.

Related cases: By the same order, the court also

remanded eight other veterans appeals, Booth v.

Principi (Fed. Cir. 02–7321, filed 05/06/2002, judgment 02/11/2003), Booth v. Principi (Fed. Cir. 02–

7329, filed 05/10/2002, judgment 02/11/2003),

Chisholm v. Principi (Fed. Cir. 02–7330, filed

05/10/2002, judgment 02/11/2003), Mason v.

Principi (Fed. Cir. 02–7331, filed 05/10/2002,

judgment 02/11/2003), Snyder v. Principi (Fed.

Cir. 02–7332, filed 05/10/2002, judgment

02/11/2003), Snyder v. Principi (Fed. Cir. 02–7333,

filed 05/10/2002, judgment 02/11/2003), Clark v.

Principi (Fed. Cir. 02–7334, filed 05/13/2002, judgment 02/11/2003), and Potter v. Principi (Fed. Cir.

02–7336, filed 05/13/2002, judgment 02/11/2003).

Opinion: (2) The court’s unpublished 53-word

signed order, Snyder v. Principi, 56 Fed. Appx. 499,

2003 WL 681577 (Fed. Cir. 2003) (no headnotes),

cites one published Federal Circuit opinion.

According to Westlaw (05/03/2005), the order

has been cited in three unpublished opinions by

the Court of Appeals for Veterans Claims.

Simmonds v. Principi (Fed. Cir. 02–7400, filed

08/07/2002, judgment 06/15/2004).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Veterans appeal voluntarily

dismissed.

Opinion: (1) The court’s 31-word order, Simmonds v. Principi, 102 Fed. Appx. 716, 2004 WL

1531920 (Fed. Cir. 2004), cites no opinions. According to Westlaw (05/03/2005), the court’s order has not been cited elsewhere.

Smith v. Principi (Fed. Cir. 02–7409, filed

09/13/2002, judgment 09/15/2003).

Appeal from: Court of Appeals for Veterans

Claims.

What happened: Unsuccessful appeal by veteran

of the denial of her application for an award of

attorney fees.

Appellant’s brief: The veteran’s 2,354-word appellant brief cites 21 published opinions (four by

the U.S. Supreme Court; seven by the Federal Circuit; two by other circuits; and eight by the Court

of Appeals for Veterans Claims, including two in

this case) and one treatise.
Citing Unpublished Opinions in Federal Appeals

307

Appellee’s brief: The government’s 3,787-word

appellee brief cites 30 published opinions (six by

the U.S. Supreme Court, 19 by the Federal Circuit,

two by other circuits, and three by the Court of

Appeals for Veterans Claims).

Appellant’s reply brief: The veteran’s 956-word

reply brief cites five published opinions (two by

the U.S. Supreme Court, two by the Federal Circuit, and one by the Court of Appeals for Veterans

Claims).

Opinion: (3) The court’s published 2,867-word

signed opinion, Smith v. Principi, 343 F.3d 1358

(Fed. Cir. 2003) (two headnotes), cites 24 published opinions (seven by the Federal Circuit and

17 by the Court of Appeals for Veterans Claims).

According to Westlaw (04/25/2005), the court’s

opinion has been cited in one published Federal

Circuit opinion, four opinions by the Court of

Appeals for Veterans Claims (1 published and

three unpublished), and five secondary sources.

Research Corp. Technologies, Inc. v.

Pharmachemie B.V. (Fed. Cir. 02–M712, filed

08/01/2002, judgment 10/02/2002).

Appeal from: District of New Jersey.

What happened: Denial of a patent defendant’s

petition for an interlocutory appeal, certified by

the district court, of the district court’s determination that an earlier patent could not be used as a

reference against a later patent. The court of appeals determined that the legal issues were too

tightly connected to the unique facts of the case.

Opinion: (2) The court’s unpublished 552-word

signed order, Research Corp. Technologies, Inc. v.

Pharmachemie, B.V., 49 Fed. Appx. 298, 2002 WL

31370455 (Fed. Cir. 2002) (no headnotes), cites one

published Federal Circuit opinion. According to

Westlaw (05/03/2005), the court’s order has not

been cited elsewhere.
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Bernice B. Donald, U.S. District Court for the Western District of Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Magistrate Judge Karen Klein, U.S. District Court for the District of North Dakota

Judge Pierre N. Leval, U.S. Court of Appeals for the Second Circuit

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Stephen Raslavich, U.S. Bankruptcy Court for the Eastern District of Pennsylvania

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also

includes the director of the Administrative Office of the U.S. Courts and seven judges

elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education

Division plans and produces education and training programs for judges and court staff,

including satellite broadcasts, video programs, publications, curriculum packages for incourt training, and Web-based programs and resources. The Research Division examines

and evaluates current and alternative federal court practices and policies. This research

assists Judicial Conference committees, who request most Center research, in developing

policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovations & Development Office and Communications Policy & Design Office—in using print, broadcast, and on-line media to deliver education and training and to disseminate the results of Center research. The Federal Judicial History Office

helps courts and others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from foreign

countries and assesses how to inform federal judicial personnel of developments in international law and other court systems that may affect their work.