“Soft Precedent”: Unpublished Opinions in Fourth Circuit Culture

By Steve Klepper (Twitter: @MDAppeal)

Getting argument before the Fourth Circuit is hard. Oral argument is a precondition for a published decision under its local rules. Even in cases where the court hears argument, there remains a strong chance that the opinion will be unpublished – even if there is a dissent.

From 2007 through 2014, the Fourth Circuit issued 259 opinions in which a judge dissented in full from the majority opinion. Seventy-four (28.6 percent) of those opinions were unpublished. In turn, 21 of those majority opinions were per curiam. During that same period, the Fourth Circuit issued 46 majority opinions that drew a partial dissent. Twelve (26.1 percent) of them, including three per curiam majority opinions, were unpublished.

I’ve always thought that such unpublished divided-panel opinions are odd. If appellate judges disagree on a point of law, it stands to reason that district judges can use clear guidance on that issue for future cases. But I’ve never had a feel for whether the Fourth Circuit is unusual among its peer circuits in issuing such divided unpublished opinions. Then – as reported by Tony Mauro and Adam Liptak [update: and Richard Re] – came the dissent by Justice Thomas (joined by Justice Scalia) from the denial of certiorari in Plumley v. Austin. There, an unpublished Fourth Circuit decision had granted habeas corpus relief. Justice Thomas wrote:

True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit.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.

Yes, it does appear odd that a court of appeals would hear argument, arrive at a split vote, take the time to write lengthy majority and dissenting opinions, and then decline to publish the results.

The last seven words of the above passage do appear to pull a punch. To “avoid creating binding law for the Circuit” isn’t really a reason to refrain from publishing an opinion. It is, by definition, the result of declining to publish an opinion. But the implication – and maybe Justice Thomas toned down an earlier draft containing an express accusation – is that the panel majority wished to avoid Supreme Court review. After all, any published U.S. court of appeals opinion granting habeas relief to a state prisoner has a good chance of becoming the subject of SCOTUSblog’s “Petitions We’re Watching” feature.

As I told Tony Mauro, however, I do not believe that avoiding Supreme Court review was why the Fourth Circuit declined to publish its opinion. Rather the Fourth Circuit was issuing what I like to call a “soft precedent.” “Soft precedents” are fully reasoned unpublished opinions – as opposed to two-page “for the reasons stated by the district court” affirmances – typically written with the benefit of oral argument. In a circuit with precious few published opinions, soft precedents give a measure of guidance without binding district judges or future Fourth Circuit panels. They can be helpful to litigants in deciding whether to settle a case and, if so, for how much. Further, they provide some comfort to district judges that, if they follow unpublished opinions, they are not going out on a limb. But circuit law remains uncertain.

When Judge Pamela Harris recounted her experience joining the Fourth Circuit last year, she spoke of the court’s collaborative culture. Soft precedents fit that culture perfectly. If a panel decision is published, it will bind future panels, whether they agree with the ruling or not. And a dissent is a fair indication that a future panel may in fact disagree. A divided opinion, if unpublished, obviates the need for en banc proceedings – the bane of a collaborative culture. As First Circuit Judge Kermit Lipez has noted, “en banc review can be the most divisive event in the life of a court of appeals.”

The guardian of the court’s collaborative culture is its longest-tenured member, Judge J. Harvie Wilkinson. One of his top achievements during his tenure as chief judge (1996–2003) was to reduce the number of en banc hearings. In 1996 and 1997, the court heard 13 cases en banc each year. But from 1998 through 2003, the average dropped to five per year (including none in 2002). That downward trend continued under Chief Judges William Wilkins (2003–2007) and Karen Williams (2007–2009), with an average of 1.5 en banc cases per year from 2004 through 2009. Some of that drop was attributable to chronic vacancies and shrinking ideological diversity on the court. But, even with the filled vacancies and ideological diversity that came with President Obama’s six appointments to the court, the court under current Chief Judge William Traxler averaged only 2.6 en banc hearings each year from 2010 through 2014.

If the court were to publish more of its opinions, it likely would require a more robust en banc practice. Almost invariably, en banc proceedings lead to deeply fractured dissenting or concurring opinions. And a robust en banc practice can lead to divisive behind-the-scenes politicking.

When faced with a dissenting opinion, a panel majority can have two reactions. The first reaction is to say, “If this issue can divide circuit judges, it can divide district judges, so we should provide firm guidance.” Judging by Justice Thomas’ reaction to the Plumley opinion, I suspect that’s how most courts of appeals see the issue. And that’s where two-judge majorities wind up more than 70 percent of the time in the Fourth Circuit. But the other reaction is to say, “If one of our colleagues disagrees with us, we should think twice before settling the issue for future panels. Maybe we should let this issue gestate for a while and let the next panel decide whether to settle the question.”

For those of you who follow Supreme Court certiorari practice, such an approach should seem familiar. Each and every conference, the Supreme Court denies review of cases that fit neatly within the considerations favoring certiorari. But the Supreme Court may be waiting for a more fully developed circuit split, or for a case with facts making for a better vehicle for deciding the issue. If an issue is genuinely important, a future case will present an opportunity to clarify the law. Similarly, if a Fourth Circuit panel majority decides not to publish a divided opinion, it is allowing a future panel to draw on prior unpublished majority and dissenting opinions, both in deciding the merits and whether to settle the issue through a reported opinion.

There is nothing wrong with a court of appeals applying certiorari-like factors in deciding whether to issue binding circuit law. Justice Thomas recently joined (in relevant part) a dissenting opinion in which Justice Scalia pointed out that a court of appeals can validly decline to hear a discretionary interlocutory appeal if it thinks the case presents a poor vehicle to decide a question. By the same taken, even where appellate jurisdiction is not discretionary, the decision whether to publish an opinion remains discretionary.

I suspect that institutional knowledge of the Fourth Circuit influenced Justice Thomas’ decision to pull his punch in Plumley. This term, as in each term since 2010, one of Justice Thomas’ clerks previously clerked for Judge Wilkinson. There are idiosyncratic institutional reasons, other than evading Supreme Court review, that a Fourth Circuit panel majority might decide not to publish 39 pages of majority and dissenting opinions.

Still, there is a price for the Fourth Circuit’s unusual publication practices. It can be quite frustrating for a practitioner. In my first loss in the Fourth Circuit, our brief cited two previous soft precedents that the district court relied upon in granting summary judgment for our client. One was unanimous and the other two-to-one. But our panel, on a two-to-one vote, reached the opposite conclusion. The majority, in a footnote, found no circumstances warranting reliance on unpublished authority. The decision in our case was also unpublished, leaving unresolved an issue that had arisen three times in four years.

It’s a terrible feeling to lose in an unreported opinion. By and large, clients do not care how they win. An ugly win is still a win. But clients are much more likely to care how they lose. When they lose in an unreported opinion, they feel like the court gave their case less than its full attention, or that the court was trying to avoid en banc review or certiorari. That feeling is acute – although likely inaccurate – when the opinion looks like a reported opinion everywhere but in the caption. I empathize with petitioner’s counsel in Plumley. Empathy perhaps played a role in Justice Thomas’ “dissental” in Plumley. Elbert Lin, counsel of record for the petitioner, clerked for Justice Thomas in the 2010 term.

Plumley is the second of two recent indications that the Supreme Court is becoming more attuned to the Fourth Circuit’s unusual approach to publication. In Chen v. Mayor & City Council of Baltimore, the district court’s opinion read like a cry for guidance from the Fourth Circuit, but the Fourth Circuit dispensed with oral argument and issued a one-paragraph affirmance “for the reasons stated by the district court.” The Supreme Court granted the pro se petition for certiorari and set the case for full merits briefing. (Certiorari was later dismissed because the petitioner disappeared and could not be located.)

The Supreme Court appears to realize that “unpublished” doesn’t mean the same thing in the Fourth Circuit that it means in other circuits. For much of the previous decade, the Fourth Circuit’s low rate of oral argument and even-lower rate of publication could have been chalked up to the court being severely shorthanded because of vacancies, illnesses, deaths, and paucity of senior judges. Midway through the 2010s, with vacancies a (blessed) thing of the past, it has become clear that the differences from other circuits are philosophical. The Fourth Circuit simply does not place the same priority on publication that other circuits do.[*]

Although I do wish the Fourth Circuit would hear oral argument in more cases and publish more of its opinions, I see the benefits to the court. The same collegial spirit animates the court’s best tradition – shaking hands with the panel even after the most heated of arguments. Once you get used to the court’s quirks, it’s a great place to brief and argue a case. My hope, however, is that Plumley and Chen spark a productive conversation about the court’s publication practices.

[*] For instance, a Criminal Justice Act client, following affirmance of his conviction, asked me to file a motion for new trial based on an affidavit from a codefendant who had invoked the Fifth Amendment at trial. Every other geographic circuit had issued an opinion on whether such an affidavit could constitute “newly discovered” evidence. The split was 10-to-1 against our position. Although CJA funding did not extend to subsequent proceedings, and although the facts and law were against us, I took the successive representation pro bono. My Fourth Circuit brief requested oral argument. The issue was sufficiently important that 11 other circuits had issued a published opinion. Even if the Fourth Circuit were to join the lopsided majority against us, it would be helpful for defense attorneys to know whether such a motion could be filed in good faith. In a genuinely nice move, the panel, true to its collegial spirit, sua sponte appointed me CJA counsel for the second appeal so that I would be paid for my quixotic work. But the Fourth Circuit dispensed with oral argument and affirmed in an unpublished opinion.