Citing Unpub "Opinions" in 9th Cir.

A colleague asked me what the latest was on citing unpublished opinions, so I looked at the Jan. 2007 version of the Federal Rules of Appellate Procedure with 9th Circuit Local Rules here.

Here's the deal:

• Nationally, all the federal courts have to allow citation of unpublished "opinions, orders, judgments, or other written dispositions" -- BUT ONLY those issued after Jan. 1, 2007. Fed. R. App. P. 32.1.



• In the Ninth Circuit, you can cite unpublished dispositions from BEFORE Jan. 1, 2007, when they're relevant under the law of the case, claim preclusion, etc., OR for factual purposes (e.g., to show double jeopardy or the existence of a related case) OR in a request to publish them or a motion for rehearing.
  



• The Ninth Circuit says that, even though you can cite them now, unpublished dispositions still "are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion." 9th Cir. R. 36-3(a).



• When the Ninth Circuit wants a written disposition to be published, it calls it an opinion. There are seven criteria, including that the case establishes, alters, modifies, or clarifies a rule of law, or calls attention to a rule of law which appears to have been generally overlooked. 9th Cir. R. 36-2.



• A "written, reasoned disposition of a case or a motion which is not intended for publication" is an memorandum. Memoranda are never "published." 9th Cir. R. 36-1.



• Any other disposition is an order. An order may be published by order of the court. 9th Cir. R. 36-1.



• Only opinions may indicate the judge who wrote them or be labeled "per curiam."

As a practical matter, many of us will continue to refer to "unpublished opinions" when, under the Ninth Circuit's definitions, they're "memoranda" or "orders." The thing to remember is that you can cite the new ones, but they still have no precedential value.