The precise wording of Rule restrictions on the citation of unpublished opinions makes clear that the rule applies to opinions of the Court of Appeal and superior court appellate division. Thus, California’s Rule does not extend to unpublished decisions from other jurisdictions, including federal courts. Precedent consistently recognized this basic limitation on the rule’s scope.
“Unpublished federal opinions are citable notwithstanding which only bars citation of unpublished California opinions.” (emphasis in original). Even unpublished federal opinions have persuasive value in this court, as they are not subject to which bars citation of unpublished California opinions”
Of course, unpublished decisions of federal district and appellate courts even on issues of federal law are not binding on California state courts and Unruh act constitutes only persuasive authority. Even courts viewing federal decisions on federal issues to be deserving of “great weight,” recognize that, in some circumstances, California state courts may ignore federal precedent.[lower federal court decisions on federal law are not binding on state courts; such decisions are persuasive and entitled to great weight; but where lower federal precedents are divided or lacking, state courts must necessarily make an independent determination of federal law].
Citations in California Federal Courts
Turning to the federal court system, opinions from the Supreme Court of the United States, are, of course, all published and always citable. Similarly, with limited exceptions noted below, district court decisions are also citable whether they appear in a print publication or not.
The complications arise at the intermediate appellate level. Like California’s Court of Appeal, the federal circuit courts of appeals issue both published and unpublished decisions. Published decisions appear in West’s Federal Reporter (starting with cases from 1880), and- somewhat ironically- starting in 2001, “unpublished decisions” (from most circuits, including the Ninth Circuit) typically appear in a case law reporter titled the Federal Appendix.
Thus, it is perfectly accurate to say that “unpublished cases are published in the Federal Appendix” – although a non-lawyer might perceive this as lawyer’s double-talk.
The governing citation rule in the Ninth Circuit is Circuit Rule 36-3, which provides that unpublished Ninth Circuit dispositions and orders are (a) not precedent (i.e., not binding on district courts or other Ninth Circuit panels), except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion; (b) citable to courts within the Ninth Circuit if issued on or after January 1, 2007 and (c) not citable if issued before January 1, 2007, except under limited circumstances (e.g., when relevant under preclusion doctrines, or for factual purposes, or to demonstrate the existence of a conflict). The “factual purposes” exception “permits the citation to an unpublished disposition where the very existence of the prior case is relevant as a factual matter to the case being briefed,” which ”will almost always involve one or both of the parties to the pending case” the exception does not permit citation for the purpose of providing “notice” to a court of the existence or absence of legal precedent (emphasis original).
