Unpublished Appellate Opinions Are Still Commonplace

August 24, 2009 Published Work
The National Law Journal

The U.S. Supreme Court's highly publicized Title VII decision in Ricci v. DeStefano, 129 S. Ct. 894 (2009), holding that a city cannot discard the results of a race-neutral promotional exam that had a racially disproportionate impact on minority firefighters, began its life as a series of unpublished decisions. The district court's "path-breaking opinion" was initially unpublished, see Ricci v. DeStefano, 530 F.3d 88, 94 (2d Cir. 2009) (denial of rehearing en banc) (Cabranes, J., dissenting), and the U.S. Court of Appeals for the 2d Circuit panel's initial one-paragraph affirmance was unpublished as well, though the panel subsequently issued the identical decision as a published per curiam opinion.

Although the Ricci case is unusual because it addressed important issues of first impression, unpublished appellate opinions are, in fact, commonplace. From 2000 to 2008, more than 81% of all opinions issued by the federal appellate courts were unpublished. See Judicial Business of the United States Courts: Annual Report of the Director, tbl. S-3 (2000 - 2008). During that period, the 4th Circuit had the highest percentage of unpublished opinions (92%), and more than 85% of the decisions in the 3d, 5th, 9th and 11th circuits were unpublished. Even the circuits with the lowest percentages during that period -- the 1st, 7th and D.C. circuits -- issued 54% to 58% of their opinioins as unpublished. Id.