There’s a long-running debate in FedCourts circles about unpublished opinions. These selections, by their phrases, usually are not precedential. But, attorneys, and a few courts, will cite unpublished opinions as precedents. The road between revealed and unpublished is fuzzy at finest. And, as I perceive issues, if one decide on a panel requests it, an opinion might be revealed.
There may be one other aspect of unpublished opinions that’s much less understood: as a result of unpublished opinions usually are not precedent, there’s much less of a have to evaluation them en banc. To be clear, the en banc courtroom can evaluation en unpublished opinion, however as a result of the choice will not be precedential, it will not be thought of a great use of the courtroom’s sources.
In 2022, this concern arose on the Fifth Circuit. A panel of the Fifth Circuit (Smith, Elrod, Oldham) dominated in favor of the plaintiff in Sambrano v. United Airways. The panel issued an unpublished opinion. Choose Smith dissented on the deserves. However he additionally objected to the bulk’s determination to concern an unpublished opinion:
I name this the “one and accomplished” methodology of decisionmaking. Two judges randomly chosen for a panel determine that—for no matter cause—a selected result’s right however will be achieved solely by divorcing the opinion from the common-law custom, by evading precedent, and by obscuring the trail within the shroud of an unpublished per curiam opinion. The plain result’s to foster no matter occurs to be the “Blue Plate Particular” trigger on a given day.
Choose Smith hints that the choice to make use of an en banc opinion was designed to evade en banc scrutiny.
The truth that an opinion is unpublished furnishes simply one more reason to vote to disclaim en banc scrutiny. However by in the present day’s ruling, the Good Ship Fifth Circuit is afire. We want all palms on deck.
On the time, I wrote “Choose Smith shot up a flare over the Gulf of Mexico.” I might want to amend that put up to the “Gulf of America.”
Any member of the panel might request that opinion must be revealed. Choose Smith might have made that request, however he (apparently) did not. There’s a little bit of sport concept behind this transfer. By Smith not voting to publish the opinion, he ensures {that a} determination he thinks is faulty is not going to be a circuit precedent. Had he voted to publish the opinion, and made the choice a precedent, that may have made en banc evaluation extra seemingly. However this latter possibility creates the danger that en banc evaluation is denied, and there’s now an entrenched precedent.
With the advantage of hindsight, en banc evaluation was denied in Sambrano by a 13-4 vote. Choose Smith dissented from the denial of rehearing en banc. He lamented a 1996 rule change that made it simpler to designate opinions as non-published. And he doubled down on his criticism of the bulk:
Our concern was prescient. As I say in my panel dissent, the “apparent consequence” of the bulk’s determination is to foster in the present day’s “‘Blue Plate Particular’ trigger” with out committing to sweeping authorized modifications that won’t at all times produce the identical outcomes.21 This “‘one and accomplished’ methodology of decision-making”22 is made attainable solely by abusing the supply of unpublished opinions―a tool that the total courtroom has now totally validated by denying re-hearing.
Choose Smith fearful that different rogue panels can keep away from en banc evaluation by marking the opinion as unpublished:
And by a lopsided vote, the en banc courtroom declines to carry a finger. After in the present day, a future panel that needs to make use of the “one and accomplished” methodology of decisionmaking can really feel safer in considering there might be no penalties.
I believe now we have discovered simply such a panel.
Yesterday, a Fifth Circuit panel issued a twenty-four web page unpublished determination. The panel reversed a judgment by Choose Matt Okay, which discovered that Deliberate Parenthood was accountable for $2 billion in damages. This concern was advanced, and of nice significance. There was each cause to publish it. However it wasn’t. Judges Barksdale, Southwick, and Graves had been on the panel. Although, on paper, this panel has two Republican-appointed judges, Barksdale and Southwick persistently vote with the liberal bloc on the en banc courtroom. After I learn this determination, my fast thought was a “one and accomplished” transfer designed to defend the opinion from en banc evaluation.
I’d count on exercise earlier than the en banc courtroom quickly.
Replace: Is it attainable for the en banc courtroom to vacate the panel’s determination to concern an unpublished determination, after which vacate that precedential opinion. This method would ship a transparent sign about “one and accomplished” panel opinions. Even judges who agree with the panel on the deserves ought to disfavor this evasion precept.
