On December 16, 2010, a panel of the Eleventh Circuit, U.S. Court of Appeals, issued a per curiam opinion interpreting the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1) as it related to specific Florida crimes. The panel designated that opinion not for publication (“DO NOT PUBLISH”). This December opinion vacated an earlier one, dated September 8, also unpublished, that had misstated one of the defendant’s prior convictions. The new decision corrected the error. In all other respects it was identical. Although unpublished, under the Federal Rules of Appellate Procedure (Rule 32.1) that December 16 decision can be cited. A rule of the Eleventh Circuit (p. 147, Rule 36.2) explicitly provides that unpublished opinions are not binding precedent but “may be cited as persuasive authority.”
The issue to be considered here is how to cite such unpublished, non-precedential decisions.
Both the September and December opinions are available on the Eleventh Circuit Web site. They and other Eleventh Circuit opinions applying the same sentence enhancement provision of the ACCA can be found with a Google web search (site:www.ca11.uscourts.gov “Armed Career Criminal Act” “residual clause”) or through a search on Google Scholar limited to the Eleventh Circuit. Anyone finding the court’s decision in United States v. Hayes on the open Web would, however, be unaware that, notwithstanding, the “DO NOT PUBLISH” label the editors of Thomson Reuters selected the decision for publication in a set of books that no law library I’ve ever used has seen fit to buy or shelve, the Federal Appendix of the National Reporter System. (The Federal Appendix is for sale. The full set, currently 523 volumes, covering a mere dozen years, can be yours for only $7,093.80, just marked down from $10,134, perhaps for the holidays. However, the print market was never that publication’s aim.) Within that series the Hayes decision is reportedly located in volume 409, at page 277. That information is not available on the open Web. Furthermore, unless a person finding and wanting to cite Hayes is a subscriber to Bloomberg Law, Lexis, or Westlaw, she would not be aware that those services have designated it, 2010 BL 299236, 2010 U.S. App. LEXIS 25741, and 2010 WL 5122587, respectively. Those high end services also provide the case’s Federal Appendix cite, 409 Fed. Appx. 277 (or as converted by The Bluebook, 409 F. App’x 277). Persons with access to Casemaker or Fastcase could discover and retrieve the Hayes decision using a suitable query, but neither of those services adds their own proprietary citation or reports the citations added by their competitors.
One further point about the Federal Rules of Appellate Procedure and Eleventh Circuit additions – they provide no explicit guidance on how to cite “unpublished” but widely available decisions like Hayes. One can, however, find indirect policy guidance in the same Eleventh Circuit rule that allows their citation. It provides that “If the text of an unpublished opinion is not available on the internet, a copy of the unpublished opinion must be attached to or incorporated within the brief, petition, motion or response in which such citation is made.” Patently, this requirement is not focused on judicial access to such decisions. The judges of the Eleventh Circuit, like other federal judges, have access to both Lexis and Westlaw. Rather the rule addresses the problem of access faced by parties without access to Westlaw, Lexis, Bloomberg Law and the rest, and citation format bears directly on access. A citation to Hayes in a brief, memo, or court opinion reading: “United States v. Hayes, 409 F. App’x 277 (11th Cir. 2010)“ is utterly useless on the open Web. It will also fail to retrieve the decision on Casemaker and Fastcase. Yet that is precisely how The Bluebook would have the case cited once it has been selected for and received volume and page numbers in the Federal Appendix. (See Rule 10.5(a).) No doubt that is because The Bluebook is written by and for law journals, whose editors have access to at least one, if not all, of the Bloomberg Law, Lexis, and Westlaw trio. The ALWD Citation Manual similarly assumes the universal utility of a Federal Appendix citation. (See its Rule 12.14(b).) In fact the ALWD manual goes farther down this false path than The Bluebook, for it authorizes citations to unpublished decisions that rely totally on Lexis or Westlaw cites, which are even less effective across systems, e.g., “United States v. Hayes, 2010 U.S. App. LEXIS 25741 (11th Cir. 2010)” or “United States v. Hayes, 2010 U.S. App. LEXIS 25741 (11th Cir. 2010).”
Until the federal courts begin attaching neutral citations to their own decisions, the only effective way to cite Hayes or any other “unpublished” but widely distributed decision is to include both the docket number and the full date of the decision, as in “United States v. Hayes, No. 09-12024 (11th Cir. Dec. 16, 2010).” The docket number, coupled with deciding court, enables retrieval of the opinion from all competing commercial research services, from Google Scholar and the open Web. The full date, particularly important with this example, allows anyone following the citation to realize that the vacated September 8 opinion, which the docket number will also retrieve, is not the target of the reference.
In sum, both The Bluebook and the ALWD Citation Manual have been led astray. An unpublished decision should be cited as an unpublished decision. Docket number, court, and full date work effectively to identify and retrieve a cited case across sources, including importantly the open Web. A citation to the Thomson Reuters Federal Appendix is no substitute. Nor is a citation using the proprietary numbering system of one of the commercial online services. Of course, there is no harm, beyond the space consumed, in adding a Federal Appendix, Bloomberg Law, Lexis, or Westlaw cite to that essential core. On the other hand, unless one is confident that all important readers of a document will have access to a system on which such a proprietary cite will work, the added value is not likely to be worth the increase in citation length.
Unfortunately, the judges of the Eleventh Circuit and the district courts over which it sits do not model this approach. Just as they impose no particular citation format on those appearing before them, they practice none. Hayes has been cited in numerous subsequent decisions, both published and unpublished. In United States v. Nix, 628 F. 3d 1341, 1342 (11th Cir. 2010) the earlier Hayes opinion is cited as “United States v. Hayes, 2010 WL 3489973 (September 8, 2010).” The dissent in Rozier v. United States, 701 F.3d 681, 688 n.5 (11th Cir. 2012) cites to the Federal Appendix reporter, “United States v. Hayes, 409 Fed.Appx. 277 (11th Cir. Dec.16.2010).” United States v. Morris, No. 11-13064 (11th Cir. Aug. 15, 2012) (which appears in volume 486 of the Federal Appendix at page 853, if that is useful to you) cites the case, without either docket number or exact date, as “United States v. Hayes, 409 Fed. App’x 277, 278-79 (11th Cir. 2010).” Citations to Hayes, in recent decisions of the U.S. District Court for the Middle District of Florida, appear in the form: “United States v. Hayes, 409 F. App’x 277 (11th Cir. 2010), cert. denied, ___ U.S. ___, 132 S. Ct. 125, 181 L. Ed. 2d 47 (2011).”
Under the influence of those appearing before them and the guidance of their clerks, federal judges need to bring their citation practice into accord with the concern over access expressed in the Eleventh Circuit rule.