Handbook XII.A: Forms of Decision

(See Fed. R. App. P. 32.1, 36; D.C. Cir. Rules 32.1, 36.)

Four possible forms for disposing of cases that have been considered by a merits panel are currently used: a published signed opinion, a published per curiam opinion, an unpublished judgment or order with memorandum, and a judgment or order without memorandum. An unpublished judgment or order with memorandum is addressed primarily to those immediately concerned with the case. The memorandum usually is fairly brief, stating only the facts and law necessary for an understanding of the Court's decision. A judgment or order without memorandum indicates affirmance or reversal, or grant or denial of a petition for review, with a brief explanation, such as citation of a governing precedent. With the exception of orders filed under seal and some scheduling orders generated by the Court's docketing system, all orders and judgments, including Clerk's orders, issued on or after June 1, 2001, are available online via PACER, the Judiciary's electronic public access service. A small document icon appears next to the docket entry for any order or judgment that can be viewed online. A PACER account is required (available from the PACER Service Center), and a per page fee applies. The PACER Service Center can be accessed through a link at the Court's website.

Circuit Rule 36(c)(2) sets out the criteria the Court employs in determining whether to publish an opinion. The Court's policy is to publish an opinion or memorandum if it meets one or more of the following criteria: (1) the opinion resolves a substantial issue of first impression generally or an issue presented for the first time in this Court; (2) the opinion alters, modifies, or significantly clarifies a rule of law previously announced by the Court; (3) the opinion calls attention to an existing rule of law that appears to have been generally overlooked; (4) the opinion criticizes or questions existing law; (5) the opinion resolves a conflict in decisions within the Circuit or creates a conflict with another circuit; (6) the opinion reverses a published district court or agency decision, or affirms it on grounds different from those in a published opinion of the district court; or (7) the opinion warrants publication in light of other factors that give it general public interest.

An unpublished disposition will be used where the Court's decision does not satisfy the criteria for publication under Circuit Rule 36(c). Citation of unpublished dispositions is governed by Federal Rule of Appellate Procedure 32.1 and Circuit Rule 32.1(b). Although Circuit Rule 32.1(b)(1) permits citation, as precedent, of unpublished dispositions of this Court issued on or after January 1, 2002, Circuit Rule 36(e)(2) makes clear that the Court's decision to issue an unpublished disposition means that the Court sees no precedential value in that disposition, i.e., the order or judgment does not add anything to the body of law already established and explained in the Court's published precedents.