Rule 49. Written opinions

The court must issue a written opinion explaining the basis for each disposition. The opinion should expound on the law as applied to the facts of the case and set out the basis for the disposition.

Professor Week's nine page letter lays out in detail his reasons for the proposal.

The proposal will now enter the Judiciary's process for rules modification.  The first place the proposal will be considered will be in the Judicial Conference's Advisory Committee on Appellate Rules.  Its next meeting is in Washington, D.C. on May 15, 2003.

Fifth Circuit Local Rule Change Requested

On December 18, 2002, the following change to the Fifth Circuit Rule of Appellate Procedure was requested.  The underlined text is the proposed addition:

RULE 47  OTHER FIFTH CIRCUIT RULES

47.6 Affirmance Without Opinion.

Here is the proposal in Adobe Acrobat PDF format:

Requested Fifth Circuit Appellate Rule Change on Affirmance Without Opinion

Click here for the cover letter sent to the Fifth Circuit Clerk for this request.

History of Attempts to Change Federal Rules to Require Explanations in All Cases

24. Item No. 97-10: Amend FRAP 36 re: disposition without opinion.

25. Item No. 97-28: Amend FRAP 36 to require that the court of appeals issue an opinion in every case in which a judgment is entered.

FRAP 36(a)(2) contemplates that a court of appeals can render a judgment without an opinion. Two commentators object that this practice violates due process, is unfair to litigants, creates doubts about the grounds for the court's decision, and "effectively -- and unfairly -- insulates the appellate court's judgment from a rehearing petition and from a petition for certiorari." The commentators ask that FRAP 36 be amended to require that an opinion of at least a few sentences be issued in every case.

A member expressed opposition to the proposals, noting that some courts -- such as his own -- simply could not function if they had to write an opinion in every case. Another member agreed that any attempt by the Committee to amend FRAP 36 to bar dispositions without opinion would encounter fierce opposition among many circuit judges. Judge Easterbrook agreed, but added that the proposals were serious and deserved discussion. He noted that the present practice reflects a trade-off between circuit size and opinion writing: If Congress expanded the number of judges on each circuit, disposing of appeals without opinion would become less necessary. But Congress has resisted expanding the circuit courts, leaving a few circuits with little choice but to dispose of some appeals without opinion.

Mr. Fulbruge said that, in the Fifth Circuit, very few appeals are disposed of without any opinion, but a substantial number are disposed of with one or two sentence "opinions" that either say that the Fifth Circuit is affirming for the reasons given by the district court or give only a few words of explanation of the judgment.

A member said that his understanding is that the Eleventh Circuit disposes of about a third of its cases without opinion. Another member said that the Virginia Supreme Court likewise disposes of a substantial number of appeals without opinion. Chief Justice Calogero said that the Louisiana Supreme Court issues an opinion in all cases. He pointed out, though, that the Court has discretionary review and that many of its opinions are brief per curiams drafted by staff attorneys.

A member expressed the view that the issue was worth studying, even if the proposals had little chance of getting through the Judicial Conference. Judge Garwood agreed, and said that he would poll the chief judges of the courts of appeals on the matter.

Ms. McKenna reported that the practice of disposing of appeals without opinion is far more prevalent in the Third Circuit than in the Eleventh. She also warned that the statistics kept by various circuits on this matter are sometimes misleading.

A member moved that Nos. 97-10 and 97-28 be retained on the study agenda with high priority. The motion was seconded. The motion carried (unanimously).

Judge Will Garwood called the meeting of the Advisory Committee on Appellate Rules to order on Thursday, April 16, 1998, at 8:35 a.m. at the Thurgood Marshall Federal Judiciary Building in Washington, D.C. The following Advisory Committee members were present: Judge Samuel A. Alito, Jr., Judge Diana Gribbon Motz, Judge Stanwood R. Duval, Jr., Hon. John Charles Thomas, Prof. Carol Ann Mooney, Mr. Michael J. Meehan, and Mr. Luther T. Munford. Mr. Stephen W. Preston, Deputy Assistant Attorney General, U.S. Department of Justice, was present representing the Solicitor General. Judge Phyllis A. Kravitch was present as the liaison from the Standing Committee, and Mr. Charles R. "Fritz" Fulbruge, III, was present as the liaison from the appellate clerks. Also present were Mr. Peter G. McCabe and Mr. John K. Rabiej from the Administrative Office and Mr. Joseph F. Spaniol, Jr., from the Standing Committee's Subcommittee on Style.

C. Item No. 91-17 (uniform plan for publication of opinions)

Judge Garwood reported that he wrote to the chief judges of all of the circuits to seek their input regarding the Committee's consideration of rules governing unpublished opinions. Almost all of the chief judges responded -- as well as several other circuit judges -- and the judges were virtually unanimous in their opposition to any rulemaking on the topic. In March, Judge Garwood appeared in person at a meeting of the chief judges. Again, the chief judges were almost unanimous -- and, on the whole, quite emphatic -- that this Committee should not propose rules governing unpublished opinions.

Judge Garwood said that the chief judges seemed to be motivated in part by a fear that the Committee would propose rules that barred judges from designating opinions as unpublished. Judge Garwood said that he tried to assure the chief judges that the Committee had no such intention, but instead was concerned about such matters as the conflicting local rules regarding the citation and precedential effect of unpublished decisions. Judge Garwood said that, notwithstanding his assurances, the chief judges remained adamant that they did not want national rulemaking on the topic of unpublished decisions.

Judge Garwood pointed out that the chief judges make up half of the voting membership of the Judicial Conference, and that the other half of the voting membership -- district court judges from each circuit -- was likely to defer to the chief judges on this matter. It is thus clear to Judge Garwood that rules regarding unpublished decisions have no chance of clearing the Judicial Conference in the foreseeable future. For that reason, Judge Garwood suggested that the Committee remove Item No. 91-17 from its study agenda.

A member wondered whether the Committee might propose a rule addressing only the question of whether unpublished decisions should be treated as precedential. Judge Garwood responded that he had discussed that precise topic with the chief judges, and that they were overwhelmingly opposed to national rulemaking on even that narrow issue. A member added that, in her view, Chief Judge Arnold and others make a persuasive case that the Advisory Committee does not have authority to promulgate rules regarding the precedential effect of unpublished opinions. She also said that there is no chance that judges would accept any rules that limit their ability to designate opinions as unpublished. Unpublished opinions are a way of life; in the Fourth Circuit, for example, fewer than 20% of cases result in published opinions.

Mr. Preston asked whether, notwithstanding the strong reaction of the chief judges, it might still be worthwhile to pursue rulemaking on the isolated question of the citation of unpublished opinions. He said that conflicting local practices (both written and unwritten) on the subject create a hardship for government attorneys and others who practice in more than one circuit. He said that the Solicitor General would support a rule providing that unpublished opinions may be cited; such a rule would preempt local rules to the contrary.

Judge Garwood responded that he agreed with the Solicitor General in principle and doubts both the wisdom and constitutionality of local rules that purport to bar attorneys from citing unpublished opinions. Judge Garwood pointed out that attorneys can cite a wide variety of non-precedential sources, ranging from the opinions of district courts to law review articles to treatises to Hale's Pleas of the Crown. All of these sources are cited only for their persuasive value. He does not understand why a court would single out one source -- unpublished opinions -- and bar their citation. But Judge Garwood said that it is nevertheless clear to him that any rules on the citation of unpublished opinions have no chance of clearing the Judicial Conference.

Ms. Judith McKenna from the Federal Judicial Center (who had joined the meeting a few minutes earlier) asked whether the chief judges understood that three circuits do not make their unpublished decisions available to LEXIS or Westlaw. Judge Garwood responded that they did; at their meeting, that fact was expressly mentioned.

At this point, L. Ralph Mecham, Director of the A.O., joined the meeting, welcomed the Committee to the Judicial Conference Center, and expressed appreciation to the Committee for its contribution to the rulemaking process.

Judge Garwood noted that also pending on the Committee's agenda were Item Nos. 97-10 and 97-28, proposals to bar the circuit courts from disposing of appeals by order. Judge Garwood said that he did not survey the chief judges on these proposals, in part because he was afraid that these proposals would draw such fierce opposition that they would detract from the questions about unpublished opinions. However, Judge Garwood did mention these proposals to the chief judges at their meeting, and the reaction was exactly as expected: The chief judges were unanimously and adamantly opposed to any rule that would require an opinion in every case.

A member said that he understood the need of courts to dispose of appeals by unpublished opinions. But he remained concerned about the way in which the practice gives an advantage to the Department of Justice, large insurance companies, and others who litigate frequently in the federal courts. Those litigants can collect and organize unpublished decisions, and thus have a better sense of a court's thinking on a particular issue than their opponents. However, the member said, he recognizes the strength of the chief judges' sentiment against rulemaking. Other members expressed similar concern, but likewise acknowledged the reality of the chief judges' opposition to rulemaking on this topic.

A member said that she was most bothered by the fact that three circuits do not even make their unpublished opinions available to LEXIS and Westlaw. She said that this aggravated the disparity between "rich" and "poor" -- or at least between frequent litigators and infrequent litigators. She also said that, as a matter of policy, the public should have free and convenient access to the work of the circuit courts. She wondered what was the motivation for keeping unpublished opinions from LEXIS and Westlaw.

Mr. Fulbruge explained that the Fifth Circuit was one of the three circuits that did not provide their opinions to LEXIS and Westlaw. He stressed that the opinions were not "secret"; anyone can walk into the court's library and read any unpublished decision. But, in response to questions from the Committee, Mr. Fulbruge conceded that the unpublished opinions were not on computer and not organized in any way other than chronologically. Thus, anyone who wanted to look for unpublished opinions of the Fifth Circuit on a particular issue would have no alternative but to read through thousands of opinions.

Ms. McKenna said that, in addition to the Fifth Circuit, the Third and Eleventh Circuits did not provide their unpublished opinions to LEXIS and Westlaw. She said that while, technically speaking, the unpublished opinions of these circuits were not "secret," secrecy was the practical effect of the refusal to provide the opinions to LEXIS and Westlaw. She expressed the view that this practice gives rise to the appearance of courts working in secrecy, which is unfortunate. She added that the Second Circuit, after being accused by a newspaper reporter of using unpublished opinions in improper ways, decided to provide its unpublished opinions to LEXIS and Westlaw -- not because it agreed with the reporter, but because it concluded that whatever was gained by withholding the opinions from LEXIS and Westlaw was not worth the suspicion that was created.

A member said that, in his experience, almost all unpublished opinions would be virtually useless to litigators or the court. Another member disagreed; in her experience, while most unpublished opinions are not helpful, occasionally they can assist litigants and influence judges.

Judge Alito said that his court, the Third Circuit, did not provide its unpublished opinions to LEXIS and Westlaw, and that he supported the decision. Judge Alito said that he didn't understand the purpose of designating opinions as "unpublished" and then giving them to LEXIS and Westlaw for electronic dissemination, which, in today's world, is the equivalent of publication. In his view, it is the other circuits -- the ones who designate their opinions as "unpublished" but then, as a practical matter, "publish" them electronically -- who are acting inconsistently.

A member wondered whether the Committee might propose a rule that would provide that an opinion would have to be published upon the request of any member of the court. Several members responded that, as a practical matter, that is already the practice in all circuits. No court will refuse the request of one of its judges that an opinion be published.

A member said that, given the opposition of the chief judges to rulemaking regarding unpublished opinions, she was willing to drop the subject from the Committee's study agenda. However, she said that she would like the Committee to try in some way to get the Third, Fifth, and Eleventh Circuits to provide their unpublished opinions to LEXIS and Westlaw. She said that she was not necessarily talking about proposing a rule; something as simple as a letter might work. Other members agreed.

Judge Alito expressed doubt that such a letter would change the minds of his colleagues on the Third Circuit. He said that the Third Circuit was well aware that it was in the minority in not providing unpublished opinions to LEXIS and Westlaw, but that most of the judges felt strongly about it and were unlikely to change their views.

The Committee continued to discuss whether unpublished opinions are valuable, and thus whether litigators who can afford to collect those opinions or research those opinions on LEXIS and Westlaw have an advantage. Some members of the Committee asserted that unpublished opinions have very little value and thus having access to them confers no real advantage to a litigator. Other members disagreed.

One member said that he was concerned that a vicious circle was developing: One of the reasons why there are a lot of unpublished opinions is that there are a lot of frivolous appeals, but one of the reasons why there are a lot of frivolous appeals is that there are so few published opinions describing a court's thinking on various issues.

With that, the Committee broke for lunch. Following the lunch break, Solicitor General Waxman joined the Committee, and the Committee resumed its deliberations on Item No. 91-17.

Judge Garwood said that he was prepared to entertain the following motion: Item No. 91-17 would be removed from the Committee's study agenda, without prejudice to any specific proposals regarding unpublished opinions that might be made in the future. At the same time, Judge Garwood would appoint a subcommittee to discuss whether and how the Third, Fifth, and Eleventh Circuits might be encouraged to provide their unpublished opinions to LEXIS and Westlaw. A member made the motion suggested by Judge Garwood. The motion was seconded. The motion carried (unanimously).

Judge Garwood appointed a subcommittee consisting of Judge Alito, Judge Motz, and Mr. Meehan, asked Judge Motz to chair the subcommittee, and asked Judge Kravitch if she would work with the subcommittee in her capacity as liaison from the Standing Committee.

D. Item Nos. 97-10 & 97-28 (require opinions in every case)

Item Nos. 97-10 and 97-28 (regarding proposals to bar the courts of appeals from disposing of appeals without opinion) were discussed at the same time as Item No. 91-17 (regarding proposals to regulate the use of unpublished opinions). By consensus, the Committee agreed to remove these items from its study agenda.

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