“Unpublished” Opinions May Be Cited in Courts of Appeals Starting January 1, 2007

The Supreme Court adopted an amendment to the Federal Rules of Appellate Procedure (FRAP) that would allow citation to “unpublished” opinions. The amendment, which Chief Justice Roberts submitted to Congress on April 12, 2006, will take effect on December 1, 2006 unless Congress passes legislation to the contrary. It will allow citation to cases issued on or after January 1, 2007.

This amendment significantly changes current federal court practice. Although “unpublished” opinions are widely available on court web cites and electronic databases, most appellate courts currently bar or discourage citation to unpublished opinions.

New Rule 32.1 will read:

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 disposition that have been:

(I) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

(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.