Tuesday, October 7, 2014

"Not for Publication"


The topic of "not for publication" has raised  controvery over the years, the main issues precedential value and the ability to cite as precedent. Some defend and some do not.  This article written in 2003 titled "How Opinions are Developed in the United States Court of Appeals for the Eleventh Circuit"  explains that "[i]n the Eleventh Circuit, unpublished opinions have no precedential value, which means that they are not binding upon a subsequent panel, although they are persuasive."   The author explains that in "most other circuits, citing unpublished opinions is either barred or limited."

11th Circuit Rules - There is a "But"

11th Cir. R. 36-2 provides that "opinions shall be unpublished unless a majority of the panels decides to publish it. Unpublished opinion are not considered binding precedent, but they may be cited as persuasive authority." But there is a "but" - this rule states "but see" I.O.P. 7 which provides that in section 2, that "[u]nder the law of this circuit, published opinions are binding precedent" and cites to  Martin v. Singletary 965 F.2d 944, 945 n.1 (11th Cir. 1992)(in which the Court writes in footnote one that "[t]he stay of the mandate in Johnson merely delays the return of jurisdiction to the district court to carry out our judgment in that case. The stay in no way affects the duty of this panel and the courts in this circuit to apply now the precedent established by Johnson as binding authority.")

"Not to Publish" to "Publish"

Rule 36-3 provides that "[a]t any time before the mandate has been issued, the panel, on its own motion or upon the motion of a party, may by unanimous vote order a previously unpublished opinion to be published."

Stare Decisis

As an aside, this article reviews the binding effect of District Court decisions on Bankruptcy Courts in their district - "anarchy".  He also explains that "stare decisis" is a legal doctrine that has been part of the American jurisprudence for over 200 year and that under this doctrine "a deliberate or solemn decision of court made after argument on question of law fairly arising in this case and necessary to its determination, is an authority or binding precedent in the same court or in lower courts in the judicial hierarchy in subsequent cases where the very point is again in controversy."

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