I remember well the indignation I felt when I first learned about unpublished decisions. The idea that an appellate court in a common-law system can issue a decision that “carries no precedential force“—an opinion good for one case only—struck me as scandalous. The rule of law, I felt, depended on precedential effect.
But then I became a law clerk. It turns out that lots of cases do not present novel claims. Indeed, lots of cases hardly present “claims” at all. Some pleadings are filled with complete gibberish; some are filled with claims that are hopeless. For instance, one of my favorite paragraphs—which I stumbled across while clerking—in any D.C. Circuit opinion is as follows:
An extraordinary number of people, institutions, and inanimate objects have wronged Tyrone Hurt. In just the last couple of years, Hurt has sued the Declaration of Independence, Black’s Law Dictionary, the United Nations, agencies of the District of Columbia and the Federal Government, and various courts and their officers. Hurt has claimed the existence of state supreme courts violates the Eighth Amendment, requested the Secret Service and the President’s Cabinet be declared unconstitutional, and demanded the deportation of a Spanish-speaking government employee. Nor are the slights Hurt suffered mere glancing blows; he routinely demands trillions of dollars in damages.
The panel’s decision (which was published) limiting Mr. Hurt’s ability to file in forma pauperis listed over 40 separate dockets. It struck me then, as it does now, that not all claims merit publication; surely the opinion resolving Mr. Hurt’s claim against the Declaration of Independence did not need to be published. See also Mahogany v. LA State Supreme Court, 262 Fed. App’x 636 (5th Cir. 2008) (“Just as one cannot sue such disliked abstractions as the color teal, the number thirteen, or the weather, a complaint filed against a statute fails to state a claim upon which relief can be granted.”)
So I’m not a purist anymore. Although I generally still believe that decisions should be published, I don’t think that a judge should have to go through the trouble of writing up a full opinion, with a full discussion of the facts and procedural history, to dispose of a case with a caption like “Smith v. Section 3 of the 21st Amendment.” Nor do I think that cases that run headlong into settled law always need to be published.
That said, I still worry about unpublished decisions. Like almost any discretionary device, I fear that the power to unpublish a decision can be abused. I especially worry, for instance, when an unpublished decision has, say, a dissent, or when a district court is reversed, particularly following oral argument. No doubt, this worry is often unjustified; presumably even in these circumstances, sometimes it may make sense to issue an unpublished opinion. Yet I worry that the unpublishing power may be used for strategic purposes, for instance to reduce the probability of en banc or Supreme Court review. Cf. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, (explaining that this discretion “allows for deviousness and abuse,” as she has “seen judges purposefully compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls,” and that she has “even seen wily would-be dissenters go along with a result they do not like so long as it is not elevated to a precedent”). As Justice Thomas warned last year:
True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit. But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review. The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published. . . . It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.
As I have mentioned in the past, Chris Walker and I are working on an article that explores—both theoretically and empirically—potential misuse of the unpublishing power in the context of qualified immunity. (The power to unpublish a decision is particularly important with qualified immunity because of the “clearly established law” requirement; many courts hold that an unpublished decision cannot clearly establish the law.) Our findings should raise eyebrows. For instance, one in five cases recognizing a new right does so in an unpublished opinion. Let that sink in.*
The D.C. Circuit is, far and away, the circuit court that is least likely to unpublish a decision. This does not surprise me; the D.C. Circuit has a lot of judges and not that many cases. Unlike other circuit courts, the D.C. Circuit stops hearing cases over the summer. Moreover, although many D.C. Circuit cases are complex, many of them are not. The upshot is that the D.C. Circuit has time to write full opinions in more cases.
This week the D.C. Circuit issued five published opinions. In other circuits, I wonder how many of these opinions would have been published. Here we go:
Boulware v. Commissioner of IRS: It seems that Mr. Boulware’s two companies paid litigation costs associated with his conviction for tax evasion and tax fraud, but that he didn’t report those payments as income. The Tax Court determined that these payments should have been reported. Pending appeal of that decision, Boulware also requested a face-to-face hearing with the Tax Court. Instead, telephone hearings were conducted, and the Commissioner levied a hefty payment plan. Dissatisfied, Boulware counter-offered with a different payment plan, which was rejected. In a rather short opinion, Judge Ginsburg, joined by Judges Srinivasan and Williams, found no abuse of discretion.
United States v. Mitchell: Mitchell was convicted on several counts relating to his participation in drug distribution. On appeal, he argued that the government failed to “properly authenticate and demonstrate chain of custody for PCP samples used to establish his guilt.” He also claimed that the district court erred when it allowed a witness to testify to her personal investigation of phone records. Judge Henderson, joined by Judges Griffith and Randolph, found that although there were gaps in the chain of custody for the PCP samples, that the district court did not commit reversible error in admitting the evidence. (“We believe the government met its burden, albeit not with flying colors.”) The court also found that even if the district court erred in allowing the summary witness to testify about her personal investigation, the error was harmless. (Not every argument in this case was resolved in the published opinion: “Mitchell raises multiple challenges to his conviction, almost all of which are without merit and require no further discussion.”)
Kingman Park Civic Association v. Bowser: The Kingman Park Civic Association is displeased with the location of a streetcar project in Kingman Park, a predominantly African-American historical neighborhood. It raised three challenges: first, that the District’s legislation authorizing the construction of overhead wires “violate[s] an 1888 federal statute”; second, that the District failed to prepare a required environmental impact statement; and third, that the project violates equal protection. Judge Williams, joined by Judges Brown and Srinivasan, rejected each challenge. Williams explained that federal law allows the District to act as it did. He also explained that an environmental impact statement was not required because the Department of Consumer and Regulatory Affairs found that the traffic was not “likely to have a substantial negative impact.” Finally, the court rejected the equal protection challenge because “the Association has offered no evidence of a racially discriminatory purpose.”
Xcel Energy Services Inc. v. FERC: Warning—this is a technical case. Xcel Energy sought review of FERC’s refusal to refund rates. Judge Rogers, joined by Judges Wilkins and Williams, concluded that because the FERC committed legal error (which the agency admits) in failing to suspend certain rate increases, retroactive remedies may be applicable. The court found that the FERC’s “initial rate order [was] ultra vires” and noted that “it is unclear why the Commission has concluded Congress intended there would be no administrative remedy for the Commission’s legal error.” The court remanded to the FERC to consider the equities of issuing a refund. (Boy, is this scheme complicated.)
Ark Initiative v. Tidwell: Ark Initiative and other environmental groups challenged a decision by the Forest Service to allow Colorado to exclude “8,300 acres of land that the Service also has designated for recreational skiing” from its “roadless” lands inventory. Ark challenged the decision on the ground that the Service did not sufficiently explain itself and because the Service gave it “insufficient notice.” The district court granted summary judgment to the Forest Service. Judge Pillard, joined by Judges Brown and Kavanaugh, affirmed and concluded that the Service had given several justifications for its decision, including the importance of skiing to Colorado’s economy. Ark relied on a recent en banc Ninth Circuit case, Organized Village of Kake v. U.S. Department of Agriculture, to argue that the Service’s decision required additional justification because it represented an “about-face in its factual assessment.” The panel noted that the Kake decision is not binding in the D.C. Circuit and concluded, moreover, that “[n]one of the Colorado findings conflicts with the findings underlying the nationwide 2001 Roadless Rule.” The court also rejected the argument that the Service was obligated to send individualized notice to Ark.
So there you have it—a fairly uneventful week at the D.C. Circuit. But perhaps this is just the calm before the storm.
* This article is still in the submission process. At some point we will place it on SSRN. If you are interested in the discretion created by the current procedural rules for qualified immunity, you should read our first article, which is now out in the Southern California Law Review and was favorably reviewed in JOTWELL.
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