Fifth Circuit Panel Issues 24-Page Unpublished Opinion In Favor Of Planned Parenthood and Reverses Judge Kacsmaryk⁩

There is a long-running debate in FedCourts circles about unpublished opinions. These decisions, by their terms, are not precedential. Yet, lawyers, and some courts, will cite unpublished opinions as precedents. The line between published and unpublished is fuzzy at best. And, as I understand things, if one judge on a panel requests it, an opinion will be published.

There is another element of unpublished opinions that is less understood: because unpublished opinions are not precedent, there is less of a need to review them en banc. To be clear, the en banc court can review en unpublished opinion, but because the decision is not precedential, it may not be considered a good use of the court’s resources.

In 2022, this issue arose on the Fifth Circuit. A panel of the Fifth Circuit (Smith, Elrod, Oldham) ruled in favor of the plaintiff in Sambrano v. United Airlines. The panel  issued an unpublished opinion. Judge Smith dissented on the merits. But he also objected to the majority’s decision to issue an unpublished opinion:

I call this the “one and done” method of decisionmaking. Two judges randomly selected for a panel decide that—for whatever reason—a particular result is correct but can be achieved only by divorcing the opinion from the common-law tradition, by evading precedent, and by obscuring the path in the shroud of an unpublished per curiam opinion. The obvious result is to foster whatever happens to be the “Blue Plate Special” cause on a given day.

Judge Smith hints that the decision to use an en banc opinion was designed to evade en banc scrutiny.

The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today’s ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.

At the time, I wrote “Judge Smith shot up a flare over the Gulf of Mexico.” I will need to amend that post to the “Gulf of America.”

Any member of the panel could request that opinion should be published. Judge Smith could have made that request, but he (apparently) didn’t. There is a bit of game theory behind this move. By Smith not voting to publish the opinion, he ensures that a decision he thinks is erroneous will not be a circuit precedent. Had he voted to publish the opinion, and made the decision a precedent, that would have made en banc review more likely. But this latter option creates the risk that en banc review is denied, and there is now an entrenched precedent.

With the benefit of hindsight, en banc review was denied in Sambrano by a 13-4 vote. Judge Smith dissented from the denial of rehearing en banc. He lamented a 1996 rule change that made it easier to designate opinions as non-published. And he doubled down on his criticism of the majority:

Our concern was prescient. As I say in my panel dissent, the “obvious result” of the majority’s decision is to foster today’s “‘Blue Plate Special’ cause” without committing to sweeping legal changes that may not always produce the same outcomes.21 This “‘one and done’ method of decision-making”22 is made possible only by abusing the availability of unpublished opinions―a device that the full court has now fully validated by denying re-hearing.

Judge Smith worried that other rogue panels can avoid en banc review by marking the opinion as unpublished:

And by a lopsided vote, the en banc court declines to lift a finger. After today, a future panel that wishes to use the “one and done” method of decisionmaking can feel more secure in thinking there will be no consequences.

I think we have found just such a panel.

Yesterday, a Fifth Circuit panel issued a twenty-four page unpublished decision. The panel reversed a judgment by Judge Matt K, which found that Planned Parenthood was liable for $2 billion in damages. This issue was complex, and of great significance. There was every reason to publish it. But it wasn’t. Judges Barksdale, Southwick, and Graves were on the panel. Though, on paper, this panel has two Republican-appointed judges, Barksdale and Southwick consistently vote with the liberal bloc on the en banc court. When I read this decision, my immediate thought was a “one and done” move  designed to shield the opinion from en banc review.

I would expect activity before the en banc court soon.

Update: Is it possible for the en banc court to vacate the panel’s decision to issue an unpublished decision, and then vacate that precedential opinion. This approach would send a clear signal about “one and done” panel opinions. Even judges who agree with the panel on the merits should disfavor this evasion principle.

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