Legal Information Report 2007-1
Last revised: 4/25/2008

Introduction

¶1 While a judge on the U.S. Court of Appeals for the Third Circuit, Supreme Court Justice Samuel A. Alito chaired the Advisory Committee on the Federal Rules of Appellate Procedure. In that capacity he led a lengthy study of the diverse circuit court rules governing the withholding of vast numbers of “unimportant” or “routine” opinions from publication and limiting citation of such “unpublished” opinions. (Also sitting as a member of the same committee was a judge of the D.C. Circuit, now Chief Justice of the Supreme Court, John G. Roberts, Jr.) In the face of judicial resistance that ranged from mild to fierce, the committee recommended a new rule overturning all past circuit policies forbidding the citation of unpublished opinions. With some revision by the Judicial Conference of the United States and after a year’s delay, that recommended rule was adopted. Issued by the Supreme Court as Rule 32.1 of the Federal Rules of Appellate Procedure (FRAP), it took effect on December 1, 2006.[1] The new rule assures that all federal court decisions issued after January 1, 2007 may be cited, notwithstanding their being designated “unpublished,” “not for publication,” “nonprecedential,” or “not precedent” by the deciding court. This altered the situation in at least four circuits of the U.S. Courts of Appeals where citation of unpublished or nonprecedential decisions had previously been severely restricted or discouraged (namely, the Second, Seventh, Ninth, and Federal Circuits).[2]