Monday, November 19, 2012

Beware Unpublished Decisions!

Appeal Request from Lenny Bruce v. Hon. John M...
Appeal Request from Lenny Bruce v. Hon. John M. Murtagh, Criminal Court of the City of New York: Special Sessions: County of New York: Part 2B: Frank S. Hogan, The District Attorney of the County of New York, 12/15/1964 (Photo credit: The U.S. National Archives)

OK this is a pet peeve of mine.  People continue to cite unpublished decisions.  When a court designates an decision as "unpublished," it designates that it does not mean for the opinion to have precedential value. When a court says this, they mean it.

The appellate rules permit citing unpublished decisions, but one had better be careful to label such a decision as unpublished because they are not precedent.  They resolve the pending individual case and a lawyer can argue that the reasoning is persuasive, but they do not settle the law for future cases.

This is particularly important in the area of special education law.  By my count there have been approximately 60 unpublished decisions in IDEA cases by U. S. Courts of Appeal in calendar years 2010 and 2011, and many more this year. For circuit level decisions, a published decision generally has a citation including the federal reporter, currently in its third series.  So the citation to "F.3d" with numbers before and after indicates that it has been published.  Other citations, such as "F.Appndx" are dubious.

Yet I continue to hear special ed law experts citing unpublished decisions as "the law."   Some publications of special ed law clearly mark unpublished cases, others are somewhat less careful. 

Here is an example of how you can get into trouble by relying on an unpublished decision:  The Third Circuit Court of Appeals recently took a hearing officer and a district court judge to task for deciding a case with only an unpublished decision as their authority.  The decision in DF by AC v. Collingswood Borough Bd of Educ 694 F.3d 488, 59 IDELR 211 (3d Cir 12/12/12)is illuminating.

So try to weed out these unpublished decisions from the law!  Do not rely upon unpublished decisions when arguing or stating "the law."  We already have a big problem in that special education law is closer to metaphysics than property law.  Let's not aggravate it by blurring these lines. 

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  1. You are correct: it is most important to recognize that these are unpublished, and not officially "citable" . . . but, at the lower levels (IEPs, impartials) the lack of publication supports an arbitrary and capricious decision-making process.

  2. Anon,

    I'm not sure what the second part of your comment means. An impartial- like a HO -cannot rely upon an unpublished decision.



    1. I'm talking about the lower level, where NO decisions are published - arbitrary and capricious because each case is, essentially, atomized: it is impossible to compare specific outcomes, so we see one district offering, for example, only Related Service vouchers, while another provides in-class/school services, based on which school was "forced" to provide services in situ. Involved parents, connected with their schools and other parents, will know what's norm in their schools - but in other schools? No. I've seen this particulalry in schools that serve lower socio-economic populations - and that's not equal justice. Hope that makes sense! -I'm running low on energy post-Sandy & pre-Thanksgiving.

    2. Anon,

      Thanks for the clarification.

      I thought that you were meaning court decisions. Now I understand what you are saying.