A few weeks ago, one of my colleagues blogged on the topic of unpublished opinions in the North Carolina Court of Appeals. The Maryland Appellate Blog released an interesting post today about the same phenomenon in the Fourth Circuit. The Maryland blog discusses the Fourth Circuit’s somewhat unusual practice of issuing unpublished opinions in cases where one of the judges dissents. That practice has apparently drawn the attention of at least two Justices on the United States Supreme Court. Justice Thomas, joined by Justice Scalia, recently dissent from the Supreme Court’s denial of certiorari from a Fourth Circuit unpublished opinion noting,
True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit. Minor v. Bostwick Labs., Inc., 669 F. 3d 428, 433, n. 6 (CA4 2012). But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review. The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published. The Fourth Circuit’s Local Rule 36(a) provides that opinions will be published only if they satisfy one or more of five standards of publication. The opinion in this case met at least three of them: it “establishe[d] . . . a rule of law within th[at] Circuit,” “involve[d] a legal issue of continuing public interest,” and “create[d] a conflict with a decision in another circuit.” Rules 36(a)(i), (ii), (v) (2015). It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.
The blog post contains some interesting statistics, as well as different theories as to why the Fourth Circuit might have a culture of unpublished opinions different from other circuits. The full post, which is worth a read, can be found here.
It will be interesting to see whether Justice Thomas’s comments will create a shift in the Fourth Circuit’s unpublished opinion culture. When two of the court’s bosses take the time to issue a dissent questioning a Fourth Circuit practice, it cannot help but cause future panels to think twice before issuing an unpublished opinion containing a dissent. However, are other factors– other than avoiding certiorari review–in play at the Fourth Circuit?
Let us know your thoughts about the Maryland blog post and the Fourth Circuit’s unpublished opinion practices in the comments below.