ControversyThe topic of "not for publication" has raised controvery over the years, the main issues precedential value and the ability to cite as precedent.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are Developed in the United States Court of Appeals for the Eleventh Circuit" explains that "[i]n the Eleventh Circuit, unpublished opinions have no precedential value, which means that they are not binding upon a subsequent panel, although they are persuasive." The author explains that in "most other circuits, citing unpublished opinions is either barred or limited."
11th Cir. R. 36-2 provides that "opinions shall be unpublished unless a majority of the panels decides to publish it. Unpublished opinion are not considered binding precedent, but they may be cited as persuasive authority."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.")