Williams v. Dallas Area Rapid Transit:
Rule denying precedential status to unpublished decisions
changes the outcome of the case.
by Raymond P. Ward

Federal appellate courts and Louisiana appellate courts publish some, but not all, of their decisions.  Published opinions C the ones that literally go into the books C are treated as legal precedents by both trial-court judges and by the appellate court that issued the opinion.  Lawyers routinely cite published opinions in their briefs, and courts routinely cite them in subsequent opinions and decisions.

Unpublished decisions, on the other hand, are generally not treated as legal precedents.  Fifth Circuit Rule 47.5.4 states that unpublished decisions Aare not precedent.@  And Rule 2-16.3 of the Uniform Rules of Louisiana Courts of Appeal prohibit lawyers from citing any court of appeal decision that is designated A not for publication,@ except in the same or related litigation.

The practice of denying precedential status to unpublished decisions is coming under increasing attack.  One of the latest salvos was fired by Fifth Circuit Judge Smith, who, joined by Judges Jones, and DeMoss, dissented from the denial of rehearing en banc in Williams v. Dallas Area Rapid Transit, No. 00-10361 (5th Cir. June 25, 2001) (panel opinion: 2/22/01, 242 F.3d 315).

The controversy over citing unpublished decisions is not merely an arcane, academic question for appellate specialists.  In Williams v. DART, it changed the outcome.  Here is what happened:

In 1999, the Fifth Circuit in Anderson v. DART held that DART is a political subdivision of the State of Texas, and hence immune from suit under the Eleventh Amendment.  But the Anderson decision was unpublished.

In 2001, the Fifth Circuit was faced with the same question in Williams v. DART: whether DART enjoys Eleventh Amendment immunity from civil suits.  If Anderson v. DART had been published (or if unpublished decisions were given precedential effect), then it would have bound the Williams court.  But since Anderson v. Dart was unpublished, the Williams court was free to depart from it.  And depart it did, holding that DART is not a political subdivision and is not immune from suit under the Eleventh Amendment.

So, the same court that gave DART Eleventh Amendment immunity in 1999 took it away in 2001.  The same litigant (DART) who appeared twice before the same court on the same issue received opposite results C because of the rule denying precedential value to unpublished decisions.  Had the Williams court given the unpublished Anderson decision precedential value, the result would have been different.

Judge Smith, joined by Judges Jones and DeMoss, dissented from the denial of rehearing en banc, because rehearing would have allowed the court to revisit the Aquestionable practice of denying precedential status to unpublished opinions.@

Judge Smith questioned some of the justifications for not giving unpublished opinions precedential value.  One such justification may have been the relative unavailability of unpublished decisions.  But the Internet, Lexis, and Westlaw have made unpublished decisions readily available to anyone.

Another justification has been the notion that unpublished decisions are supposed to be straightforward applications of existing law to plain-vanilla facts.  Theoretically, unpublished decisions should do nothing new.  But the theory doesn=t always work.  For example, in the first half of 2001, the Fifth Circuit issued four unpublished decisions in which a judge dissented.  One dissenting jurist would seem to indicate that those decisions were not easy applications of existing law to plain-vanilla facts.  Judge Smith offers this question for consideration:  AIf [an unpublished] opinion is a mere restatement of existing law (as it must be, if it is accorded unpublished status), what is the harm in viewing it as precedent?@

Judge Smith cited the recent Eighth Circuit decision holding that the Eighth Circuit=s rule restricting the precedential value of unpublished decisions is unconstitutional, Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot , 235 F.3d 1054 (8th Cir. 2000).  He acknowledged that Anastasoff has been criticized, and that there are Apowerful arguments both for and against the policy of giving precedential effect to unpublished opinions.@  But Athe issue is close enough for this court to give it en banc consideration.@

This seemingly arcane issue is important to both lawyers and their clients.  The refusal to accord precedential status to an unpublished decision was decisive in Williams.  And the Eighth Circuit= s decision in Anastasoff holding such a rule unconstitutional calls into question all similar rules in both state and federal appellate courts.

Raymond P. Ward practices appellate advocacy and products-liability defense.

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