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Citing Unpublished Federal Appellate Opinions Issued Before 2007

Robert Timothy Reagan 

Federal Judicial Center 

March 9, 2007

Federal Rule of Appellate Procedure 32.1 permits attorneys to cite to federal courts of appeals their unpublished opinions issued in 2007 or later. Unpublished opinions issued before 

2007 may be cited to the courts if permitted by the courts’ local rules. Following is a summary table of the federal courts of appeals’ local rules on citations to their unpublished opinions issued before 2007. 

 All federal courts of appeals permit citation to their unpublished opinions in related 

cases to show res judicata, law of the case, and the like. But before 2007, federal appellate 

courts differed on the extent to which they permitted citations to their unpublished opinions 

in unrelated cases. 

 Seven courts—courts of appeals for the First, Third, Fifth, Sixth, Tenth, Eleventh, and 

District of Columbia Circuits—are considered “permissive” courts, in that they do not restrict citation to their unpublished opinions. But the court of appeals for the District of Columbia Circuit only permits citations to their unpublished opinions issued in 2002 or later. 

 Three courts—courts of appeals for the Fourth, Eighth, and Federal Circuits—are considered “discouraging” courts, in that they permit but discourage citation to their unpublished opinions issued before 2007, generally permitting such citations only when there is no 

published authority on point. 

 Three courts—courts of appeals for the Second, Seventh, and Ninth Circuits—are considered “restrictive” courts, in that they prohibit citations to their unpublished opinions issued before 2007 in unrelated cases. 

 The courts’ rules in the following table are arranged so that similar rules appear together. 
Citing Unpublished Federal Appellate Opinions Issued Before 2007 ~ Federal Judicial Center 

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Citation Rules in Permissive Courts 

Circuit 

Citation 

Rules Citation Rule Excerpts 

Citations to 

Unpublished 

Opinions Issued 

in Unrelated 

Cases Before 

2007 Note 

First 1st Cir. R. 

32.1.0 

“An unpublished judicial opinion, order, judgment or 

other written disposition of this court may be cited 

regardless of the date of issuance.” 1st Cir. R. 32.1.0(a). 

Sixth 6th Cir. R. 

28(g) 

“Citation of unpublished opinions is permitted.” 6th 

Cir. R. 28(g). 

Tenth 10th Cir. R. 

32.1 

“Unpublished decisions are not precedential, but may be 

cited for their persuasive value.” 10th Cir. R. 32.1(A). 

Eleventh 11th Cir. R. 

36-2 

“Unpublished opinions are not considered binding 

precedent, but they may be cited as persuasive 

authority.” 11th Cir. R. 36-2. 

Formerly 

discouraging courts. 

Third 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.” 3d 

Cir. I.O.P. 5.7. 

The court’s Internal 

Operating 

Procedures 

discourage judges 

from relying on 

unpublished 

opinions. 

Fifth 5th Cir. R. 

47.5.3, 47.5.4 

“Unpublished opinions issued before January 1, 1996, 

are precedent. Although every opinion believed to have 

precedential value is published, an unpublished opinion 

may be cited pursuant to Fed. R. App. P. 32.1(a).” 5th 

Cir. R. 47.5.3. 

“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, notice, sanctionable 

conduct, entitlement to attorney’s fees, or the like). An 

unpublished opinion may be cited pursuant to Fed. R. 

App. P. 32.1(a).” 5th Cir. R. 47.5.4. 

Permitted. 

Unpublished 

opinions issued 

before 1996 were 

considered 

precedent, but their 

citation was 

discouraged. 

District of 

Columbia D.C. R. 32.1 

“Unpublished orders or judgments of this court, 

including explanatory memoranda and sealed opinions, 

entered before January 1, 2002, are not to be cited as 

precedent. Counsel may refer to an unpublished 

disposition, however, when the binding (i.e., the res 

judicata or law of the case) or preclusive effect of the 

disposition, rather than its quality as precedent, is 

relevant.” D.C. R. 32.1(b)(1)(A). 

“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.” D.C. R. 32.1(b)(1)(B). 

Permitted if issued 

2002 or later and not 

sealed. 

Unpublished 

opinions in 

unrelated cases 

issued before 2002 

may not be cited. 
Citing Unpublished Federal Appellate Opinions Issued Before 2007 ~ Federal Judicial Center 

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Citation Rules in Discouraging Courts 

Circuit 

Citation 

Rules Citation Rule Excerpts 

Citations to 

Unpublished 

Opinions Issued 

in Unrelated 

Cases Before 

2007 Note 

Federal Fed. Cir. R. 

32.1 

“Parties are not prohibited or restricted from citing 

nonprecedential dispositions issued after January 1, 

2007. This rule does not preclude assertion of claim 

preclusion, issue preclusion, judicial estoppel, law of the 

case, and the like based on a nonprecedential disposition 

issued before that date.” Fed. Cir. R. 32.1(c). 

“The court may refer to a nonprecedential disposition in 

an opinion or order and may look to a nonprecedential 

disposition for guidance or persuasive reasoning, but 

will not give one of its own nonprecedential dispositions 

the effect of binding precedent.” Fed. Cir. R. 32.1(d). 

Discouraged. Formerly a 

restrictive court. 

Fourth 4th Cir. R. 

32.1 

“Citation of this Court’s unpublished dispositions 

issued prior to January 1, 2007, 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 of this Court issued prior to January 1, 2007, 

has precedential value in relation to a material issue in a 

case and that there is no published opinion that would 

serve as well, such disposition may be cited if the 

requirements of FRAP 32.1(b) are met.” 4th Cir. R. 32.1. 

If “there is no 

published opinion 

that would serve as 

well.” 

Eighth 8th Cir. R. 

32.1A 

“Unpublished opinions are decisions which a court 

designates for unpublished status. They are not 

precedent. Unpublished opinions issued on or after 

January 1, 2007, may be cited in accordance with FRAP 

32.1. Unpublished opinions issued before January 1, 

2007, generally should not be cited. 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.” 

8th Cir. R. 32.1A. 

Discouraged, but 

permitted if there is 

no published 

opinion on point. 

If “no published 

opinion of this or 

another court would 

serve as well.” 
Citing Unpublished Federal Appellate Opinions Issued Before 2007 ~ Federal Judicial Center 

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Citation Rules in Restrictive Courts 

Circuit 

Citation 

Rules Citation Rule Excerpts 

Citations to 

Unpublished 

Opinions Issued 

in Unrelated 

Cases Before 

2007 Note 

Ninth 9th Cir. R. 

36-3 

“Unpublished dispositions and orders of this Court 

issued before January 1, 2007, may not be cited to the 

courts of this circuit, except in the following 

circumstances. (i) They may be cited to this Court or to 

or by any other court in this circuit when relevant under 

the doctrine of law of the case or rules of claim 

preclusion or issue preclusion. (ii) They may be cited to 

this Court or by any other courts in this circuit for 

factual purposes, such as to show double jeopardy, 

sanctionable conduct, notice, entitlement to attorneys’ 

fees, or the existence of a related case. (iii) They may be 

cited to this Court in a request to publish a disposition 

or order made pursuant to Circuit Rule 36-4, or in a 

petition for panel rehearing or rehearing en banc, in 

order to demonstrate the existence of a conflict among 

opinions, dispositions, or orders.” 9th Cir. R. 36-3(c). 

Permitted to request 

publication or 

rehearing. 

Second 2d Cir. R. 

§ 0.23(c)(2) 

“Citation to summary orders filed prior to January 1, 

2007, is not permitted in this or any other court, except 

in a subsequent stage of a case in which the summary 

order has been entered, in a related case, or in any case 

for purposes of estoppel or res judicata.” 2d Cir. R. 

§ 0.23(c)(2). 

Seventh 7th Cir. R. 

32.1 

“Orders, which are unsigned, are released in 

photocopied form, are not published in the Federal 

Reporter, and are not treated as precedents.” 7th Cir. R. 

32.1(b). 

“No order of this court issued before January 1, 2007, 

may be cited except to support a claim of preclusion (res 

judicata or collateral estoppel) or to establish the law of 

the case from an earlier appeal in the same proceeding.” 

7th Cir. R. 32.1(d). 

Prohibited.