FRAP 32.1 – Citation to Federal Unpublished Opinions in the Circuit Courts

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In April 2006, proposed Federal Rule of Appellate Procedure (FRAP) 32.1 was adopted by the U.S. Supreme Court. The rule, which went into effect on December 1, 2006, prohibits Federal Circuit Courts from disallowing citation to federal unpublished opinions issued on or after January 1, 2007.

FRAP 32.1 raises many open questions that will most likely be resolved by the courts in the months to come. For example:

• While FRAP 32.1 disallows the Circuits from banning federal unpublished opinions issued on or after January 1, 2007, the Circuits still have the option of allowing citation to unpublished opinions issued prior to 2007. Which Circuits will allow these prior unpublished cases to be cited is to be determined.
• While the majority of cases cited in the Circuit Courts are other Circuit Court cases, the rule speaks generally about allowing all types of federal unpublished cases. It remains to be seen how many unpublished Federal District Court and other unpublished federal trial court cases are cited, and what rules are adopted pertaining to unpublished opinions in other federal courts.

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As part of our ongoing commitment to provide practitioners with up-to-date knowledge on recent rulings and developments, Loislaw will be tracking the impact of FRAP 32.1, so as to keep you apprised of any information or changes relating to this ruling. Please bookmark this page and check back often for updates.