(aka Orders, Summary Orders, Summary Disposition, Summary Opinions, Affirmance Without Opinion, Unpublished Orders, Disposition Without Opinion, or Abbreviated Dispositions)

The rules below were extracted from the web sites of the various Federal Court of Appeals in August, 2002.  Forthcoming and proposed rules were also reviewed, and to the best of this author's knowledge, no revisions are currently pending on these excerpts.  This author can also find no discussion at all of affirmance without opinion in the Federal Rules of Appellate Procedure (FRAP).  The FRAP apply to all circuits.  Where little was lost in context, the rules discussing published versus unpublished opinions are not included.

As can be quickly observed, the rules vary greatly in what the concept is called and in style, but all but one circuit (the Third) have explicit rules allowing judges, if they so desire, to rule without writing a rationale.

First Circuit

Local Rule 36. Opinions

(a) Opinions Generally. The volume of filings is such that the court cannot dispose of each case by opinion. Rather it makes a choice, reasonably accommodated to the particular case, whether to use an order, memorandum and order, or opinion. An opinion is used when the decision calls for more than summary explanation. However, in the interests both of expedition in the particular case, and of saving time and effort in research on the part of future litigants, some opinions are rendered in unpublished form; that is, the opinions are directed to the parties but are not otherwise published in the official West reporter, and may not be cited in unrelated cases. As indicated in Local Rule 36 (b), the court's policy, when opinions are used, is to prefer that they be published; but in limited situations, described in Local Rule 36 (b), where opinions are likely not to break new legal ground or contribute otherwise to legal development, they are issued in unpublished form.

(b) Publication of Opinions. The Judicial Council of the First Circuit, pursuant to resolution of the Judicial Conference of the United States, hereby adopts the following plan for the publication of opinions of the United States Court of Appeal for the First Circuit.

(1) Statement of Policy. In general, the court thinks it desirable that opinions be published and thus be available for citation. The policy may be overcome in some situations where an opinion does not articulate a new rule of law, modify an established rule, apply an established rule to novel facts or serve otherwise as a significant guide to future litigants. (Most opinions dealing with claims for benefits under the Social Security Act, 42 U.S.C. § 205(g), will clearly fall within the exception.)

(2) Manner of Implementation.

(A) As members of a panel prepare for argument, they shall give thought to the appropriate mode of disposition (order, memorandum and order, unpublished opinion, published opinion). At conference the mode of disposition shall be discussed and, if feasible, agreed upon. Any agreement reached may be altered in the light of further research and reflection.

(B) With respect to cases decided by a unanimous panel with a single opinion, if the writer recommends that the opinion not be published, the writer shall so state in the cover letter or memorandum accompanying the draft. After an exchange of views, should any judge remain of the view that the opinion should be published, it must be.

(C) When a panel decides a case with a dissent, or with more than one opinion, the opinion or opinions shall be published unless all the participating judges decide against publication. In any case decided by the court en banc the opinion or opinions shall be published.

(D) Any party or other interested person may apply for good cause shown to the court for publication of an unpublished opinion.

(E) If a District Court opinion in a case has been published, the order of court upon review shall be published even when the court does not publish an opinion.

(F) Unpublished opinions may be cited only in related cases. Only published opinions may be cited otherwise. Unpublished means the opinion is not published in the printed West reporter.

(G) Periodically the court shall conduct a review in an effort to improve its publication policy and implementation.

(c) Copies of Opinions. Unless subject to a standing order which might apply to classes of subscribers, such as law schools, the charge for a copy of each opinion, after one free copy to counsel for each party is $5.00.

§ 0.23. Dispositions in Open Court or by Summary Order

The demands of an expanding case load require the court to be ever conscious of the need to utilize judicial time effectively. Accordingly, in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by a written opinion, disposition will be made in open court or by summary order.

Where a decision is rendered from the bench, the court may deliver a brief oral statement, the record of which is available to counsel upon request and payment of transcription charges. 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.

Third Circuit

The Third Circuit addresses the issue of whether to issue a written opinion in its Internal Operating Procedures instead of its Local Rules:

A case may be terminated in this court by a judgment order upon the unanimous decision of the panel.

6.2.1 A judgment order is filed when the panel unanimously determines to affirm the judgment or order of the district court or decision of the Tax Court, enforce or deny review of a decision or order of an administrative agency, or dismiss the appeal or petition for review for lack of jurisdiction or otherwise, and determines that a written opinion will have no precedential or institutional value.

6.2.2 A judgment order may be used when:

(a) The judgment of the district court is based on findings of fact which are not clearly erroneous;

(b) Sufficient evidence supports a jury verdict;

(c) Substantial evidence on the record as a whole supports a decision or order of an administrative agency;

(d) No error of law appears;

(e) The district court did not abuse its discretion on matters addressed thereto; or 

(f) The court has no jurisdiction.

6.3.1 A judgment order affirming the district court in a direct criminal appeal includes a statement of those issues raised by appellant and considered by the panel.

6.3.2 A judgment order may state that the case is affirmed by reference to the opinion of the district court or decision of the administrative agency and may contain one or more references to cases or other authorities.

6.4.1 At conference the panel decides whether the case requires an opinion or a judgment order. If the latter, the judge assigned to prepare the order furnishes other members of the panel with copies of the proposed order. The panel members indicate their approval either on a copy which is provided by the order writer or by signifying approval in writing by electronic mail or otherwise.

6.4.2 The order writer promptly arranges for filing the original with the clerk.

JUDGMENT ORDER

After consideration of all contentions raised by appellant, it is ADJUDGED AND ORDERED that the judgment of the district court be and is hereby affirmed. Costs taxed against appellant.

By the Court,

. . . . . . . . . . . . .

Chief Judge/Circuit Judge

Attest:

. . . . . . . . . . . .

Clerk

Dated:

JUDGMENT ORDER

After considering the contentions raised by appellant, towit, that the court erred: (1) in refusing to charge on the testimony of an accomplice as requested by appellant; (2) in admitting hearsay testimony of a witness; and (3) in refusing to grant a motion of acquittal on the theory of insufficiency of evidence, it is ADJUDGED AND ORDERED that the judgment of the district court be and is hereby affirmed.

ORDER OR JUDGMENT ORDER

After consideration of all contentions raised by the appellant and concluding that this court has no jurisdiction because the appeal is premature, see Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982), it is ADJUDGED AND ORDERED that the appeal be and is hereby dismissed without prejudice to the filing of a timely appeal. Costs taxed against appellant.

16.4 Dismissal for Lack of Certification Under Fed.R.Civ.P. 54(b).

When the appeal is dismissed because of lack of certification under Fed.R.Civ.P. 54(b), an order of dismissal ordinarily contains language similar in form to:

The appeal will be dismissed without prejudice to the right of appellant to apply to the district court for a determination and direction under Fed.R.Civ.P. 54(b). However, we express no opinion as to whether the determination and direction should be made, this being a matter within the discretion of the district court. If the determination and direction are made within thirty (30) days, a new appeal may come before us on the present briefs and record supplemented to show subsequent proceedings.

Fourth Circuit

Local Rule 36.3. Summary Opinions. If all judges on a panel of the Court agree following oral argument that an opinion in a case would have no precedential value, and that summary disposition is otherwise appropriate, the Court may decide the appeal by summary opinion. A summary opinion identifies the decision appealed from, sets forth the Court's decision and the reason or reasons therefor, and resolves any outstanding motions in the case. It does not discuss the facts or elaborate on the Court's reasoning.

47.6 Affirmance Without Opinion. The judgment or order may be affirmed or enforced without opinion when the court determines that an opinion would have no precedential value and that any one or more of the following circumstances exists and is dispositive of a matter submitted for decision: (1) that a judgment of the district court is based on findings of fact that are not clearly erroneous; (2) that the evidence in support of a jury verdict is not insufficient; (3) that the order of an administrative agency is supported by substantial evidence on the record as a whole; (4) in the case of a summary judgment, that no genuine issue of material fact has been properly raised by the appellant; and (5) no reversible error of law appears. In such case, the court may, in its discretion, enter either of the following orders: "AFFIRMED. See 5th Cir. R. 47.6." or "ENFORCED. See 5th Cir. R. 47.6."

6 Cir. R. 36 Entry of Judgment - Dispositions in Open Court

In those cases in which the decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by a written opinion, disposition of the case may be made in open court following oral argument. A written judgment shall be signed and entered by the clerk in accordance with the decision of the panel from the bench. Counsel may obtain from the clerk a copy of the transcript of the decision as it was announced from the bench.

(a) Policy. It is the policy of the circuit to reduce the proliferation of published opinions.

(b) Publication. The court may dispose of an appeal by an order or by an opinion, which may be signed or per curiam. Orders shall not be published and opinions shall be published.

(1) "Published" or "publication" means:

(i) Printing the opinion as a slip opinion;

(ii) Distributing the printed slip opinion to all federal judges within the circuit, legal publishing companies, libraries and other regular subscribers, interested United States attorneys, departments and agencies, and the news media; and

(iii) Unlimited citation as precedent.

(2) Unpublished orders:

(i) Shall be typewritten and reproduced by copying machine;

(ii) Shall be distributed only to the circuit judges, counsel for the parties in the case, the lower court judge or agency in the case, and the news media, and shall be available to the public on the same basis as any other pleading in the case;

(iii) Shall be available for listing periodically in the Federal Reporter showing only title, docket number, date, district or agency appealed from with citation of prior opinion (if reported), and the judgment or operative words of the order, such as "affirmed," "enforced," "reversed," "reversed and remanded," and so forth;

(iv) 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.

(c) Guidelines for Method of Disposition.

(1) Published opinions.

A published opinion will be filed when the decision

(i) establishes a new, or changes an existing rule of law;

(ii) involves an issue of continuing public interest;

(iii) criticizes or questions existing law;

(iv) constitutes a significant and non-duplicative contribution to legal literature

(A) by a historical review of law,

(B) by describing legislative history, or

(C) by resolving or creating a conflict in the law;

(v) reverses a judgment or denies enforcement of an order when the lower court or agency has published an opinion supporting the judgment or order; or

(vi) is pursuant to an order of remand from the Supreme Court and is not rendered merely in ministerial obedience to specific directions of that Court.

(2) Unpublished orders.

When the decision does not satisfy the criteria for publication, as stated above, it will be filed as an unpublished order. The order will ordinarily contain reasons for the judgment, but may not do so if the court has announced its decision and reasons from the bench. A statement of facts may be omitted from the order or may not be complete or detailed.

(d) Determination of Whether Disposition is to be by Order or Opinion.

(1) The determination to dispose of an appeal by unpublished order shall be made by a majority of the panel rendering the decision.

(2) The requirement of a majority represents the policy of this circuit. Notwithstanding the right of a single federal judge to make an opinion available for publication, it is expected that a single judge will ordinarily respect and abide by the opinion of the majority in determining whether to publish.

(3) Any person may request by motion that a decision by unpublished order be issued as a published opinion. The request should state the reasons why the publication would be consistent with the guidelines for method of disposition set forth in this rule.

(e) Except to the purposes set forth in Circuit Rule 53(b)(2)(iv), no unpublished opinion or order of any court may be cited in the Seventh Circuit if citation is prohibited in the rendering court.

RULE 47B: AFFIRMANCE OR ENFORCEMENT WITHOUT OPINION

A judgment or order appealed may be affirmed or enforced without opinion if the court determines an opinion would have no precedential value and any of the following circumstances disposes of the matter submitted to the court for decision:

(1) a judgment of the district court is based on findings of fact that are not clearly erroneous;

(2) the evidence in support of a jury verdict is not insufficient;

(3) the order of an administrative agency is supported by substantial evidence on the record as a whole; or

(4) no error of law appears.

The court in its discretion, with or without further explanation, may enter either of the following orders: "AFFIRMED. See 8th Cir. R. 47B"; or "ENFORCED. See 8th Cir. R. 47B."

Circuit Rule 36-1

Opinions, Memoranda, Orders; Publication

Each written disposition of a matter before this Court shall bear under the number in the caption the designation OPINION, or MEMORANDUM, or ORDER. A written, reasoned disposition of a case or motion which is designated as an opinion under Circuit Rule 36-2 is an OPINION of the Court. It may be an authored opinion or a per curiam opinion. A written, reasoned disposition of a case or a motion which is not intended for publication under Circuit Rule 36-2 is a MEMORANDUM. Any other disposition of a matter before the Court is an ORDER. A memorandum or order shall not identify its author, nor shall it be designated "Per Curiam."

All opinions are published; no memoranda are published; orders are not published except by order of the court. As used in this rule, the term PUBLICATION means to make a disposition available to legal publishing companies to be reported and cited.

36.1 Orders and judgments. The court does not write opinions in every case. The court may dispose of an appeal or petition without written opinion. Disposition without opinion does not mean that the case is unimportant. It means that the case does not require application of new points of law that would make the decision a valuable precedent.
 

36.2 Publication. When the opinion of the district court, an administrative agency, or the Tax Court has been published, this court ordinarily designates its disposition for publication. If the disposition is by order and judgment, the court will publish only the result of the appeal.
 

36.3 Citation of unpublished opinions/orders and judgments.
 

  (A) Not precedent. Unpublished orders and judgments of this court are not binding precedents, except under the doctrines of law of the case, res judicata, and collateral estoppel.
 

  (B) Reference. 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.
 

  (C) Attach copy. A copy of an unpublished decision must be attached to any document that cites it. If an unpublished decision is cited at oral argument, the citing party must provide a copy to the court and the other parties.

Eleventh Circuit

(1) Policy. It is the policy of this court to publish opinions and explanatory memoranda that have general

(2) Published Opinions. An opinion, memorandum, or other statement explaining the basis for the court's

(b) Abbreviated Dispositions. The court may, while according full consideration to the issues, dispense with

(d) Motion to Publish. Any person may, by motion made within 30 days after judgment or, if a timely petition

Rule 36. Entry of Judgment – Judgment of Affirmance Without Opinion

The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value:

(a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous;

(b) the evidence supporting the jury’s verdict is sufficient;

(c) the record supports summary judgment, directed verdict, or judgment on the pleadings;

(d) the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or

(e) a judgment or decision has been entered without an error of law

Last saved on: 01/09/2005

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