Supreme Court Prohibits Prohibitions on Citation of Unpublished Opinions
April 14, 2006. The Supreme Court released its amendments [6 pages in PDF] to the Federal Rules of Appellate Procedure (FRAP). These changes add a new Rule 32.1, pertaining to citation of opinions designated as "unpublished".
The new Rule 32.1 provides that "A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as ``unpublished,´´ ``not for publication,´´ ``non-precedential,´´ ``not precedent,´´ or the like; and (ii) issued on or after January 1, 2007."
Many "unpublished" opinions are published. Some appellate circuits have adopted rules that provide that their opinions that have been designated as unpublished, non-precedential, or not precedent, cannot be cited as precedent in that circuit.
Notably, while the Supreme Court has decided to overturn these appellate court rules, the change will not have retroactive effect.
28 U.S.C. § 2072 provides, in part, that "The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals." See also, 28 U.S.C. § 331.
Chief Justice John Robert sent these, and other, amendments to the Congress
by letter dated April 12, 2006. The amendments take effect unless the Congress
acts to the contrary.