Precedent or Not? Confusion About Use of Unpublished Decisions

By Thomas C. Fitzhugh, III, Esq., The Longshore Institute, Houston, Texas

Before computerized legal research, lawyers had to rely on printed cases that came out first in paperback (advance sheets) and ultimately in beautifully bound volumes. Today those volumes are only used as backdrop for portraits or law firm websites. They have absolutely no value on the market other than as decoration. But the cases that are found in those volumes are precedent. They are published, and if they are appellate decisions, they bind lower courts. Other decisions deemed unimportant enough to guide future decisions or because they were not considering new issues were not published. Though they were in the court archives, they were difficult to find and could not be cited in briefs.

Fast forward to the electronic age. All court decisions are accessible online, whether officially published or not. U.S. Courts of Appeal struggled with appropriate use of their unpublished decisions, maintaining that only cases published in the Federal Reporter are precedential. Despite this public posture, they have authorized publication of more important “unpublished” decisions in the Federal Appendix. There remain a larger number of unpublished, i.e., decisions without a formal citation, that are accessible online. Many of these are criminal or immigration decisions that plow no new legal ground. They are not to be cited in appellate briefs, nor are their holdings considered binding.

Local federal appellate rules clearly state that unpublished decisions are not to be cited in briefs or relied upon a precedent. For example, Fifth Circuit Local Rule 47.5.4 provides:

47.5.4 Unpublished Opinions Issued on or After January 1, 1996*. Unpublished opinions issued on or after January 1, 1996*, are not precedent, except under the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show double jeopardy, notice, sanctionable conduct, entitlement to attorney’s fees, or the like). An unpublished opinion may be cited pursuant to FED. R. APP. P. 32.1(a). The party citing to an unpublished judicial disposition should provide a citation to the disposition in a publicly accessible electronic database. If the disposition is not available in an electronic database, a copy of any unpublished opinion cited in any document being submitted to the court must be attached to each copy of the document, as required by FED. R. APP. P. 32.1(b).

In the Ninth Circuit, Local Rule 36-3 provides:

The Benefits Review Board has no specific rule about publication, but clearly the Board feels only a handful of cases merit publication each year. In its early days the BRB published a raft of decisions, since so many new legal issues were presented. Volume 1 of the Benefits Review Board Service Reporter contained 91 published decisions. Last year Volume 50 had only ten (10) published decisions but also included 49 officially unpublished ones. All BRB decisions are accessible on its website, and the BRBS Reporter Advisory Panel reviews select “unpublished” cases to be included in the publication volumes. The awkward UPD designation in citations marks these cases. Each unpublished decision contains this opening footnote: “The Board regards its unpublished Decision and Orders as lacking precedential value. Therefore, unpublished Board decisions generally should not be cited or relied upon by parties in presenting their cases. Lopez v. Southern Stevedores, 23 BRBS 295, 300 n.2 (1990).”

Why does this matter? It’s unclear how the Board decides what cases to publish. The Associate Solicitor of Labor and other experienced Longshore attorneys request the Board consider publishing some of the unpublished decisions, but often these requests fall on deaf ears. Consider the confusion that now exists because of the unevenness of publishing/not publishing Board decisions.

In Patterson v. Omniplex World Services, 36 BRBS 149 (2002), a Defense Base Act case, the claimant was injured overseas, returned to his native Ohio to recuperate, then took another overseas job with a different employer. During that tour, Patterson suffered a heart attack. At the formal hearing his first DBA employer presented a labor market survey that looked at available jobs in his Ohio area (none was found) and also overseas, where several job openings he could do existed. The ALJ rejected these jobs, finding the only relevant labor market was the area near his home in the United States. He excluded consideration of any overseas positions. On appeal, the Benefits Review Board reversed, and held that because the claimant was accustomed to working in locales away from his permanent residence, that excluding evidence of suitable jobs in these locales permits the incongruous result of potentially finding him totally disabled based on a limited local market while he continued to work overseas. The BRB stated that, based on the unique facts in this case, that the relevant labor marked for purposes of establishing the availability of suitable alternate employment includes both the [local] area as well as overseas locations where jobs similar to those claimant has performed are available which are suitable given claimants post-injury restrictions. Id. at 153-54.

In 2013 the Board limited Patterson in the unpublished decision of Knipp v. Service Employees Int’l, Inc., BRB No. 12-0390 (Apr. 17, 2013). In that case, the Board distinguished because Patterson had extensive overseas employment, whereas in Knipp, the claimant had not made a career of overseas employment, although he had two prior overseas stints. Knipp had worked overseas for one year in 2004, two months in 2007, and one month in 2008. Knipp had not looked for overseas jobs following his injury, and the Board held that the administrative law judge rationally declined to consider the suitability of overseas jobs.

Next, in another unpublished decision, Hobbs v. Service Employees Int’l Inc., (No. 15-0291, 12/9/2015), the Board further limited Patterson, stating that Patterson does not stand for the proposition that employers in Defense Base Act cases can always attempt to show the availability suitable alternate employment in overseas locations. Rather, the Board remarked, relocation cases have some relevance, indicating that the administrative law judge should consider such factors as the claimants residence at the time he filed his claim, his motivation for relocating, the legitimacy of the motivation, duration of stay in the community, ties to the community, and availability of suitable jobs there as opposed to his former residence. Id., at 4 n. 3. Hobbs did not even make the cut for BRBS Reporter purposes, but an ALJ found it and relied on it to exclude an overseas labor market survey for another DBA claimant in DeFranco v. International Development Solutions LCC, 50 BRBS (ALJ) 191 (2006).

Again in Herfi v. Global Linguist Solutions, LLC, 51 BRBS (UPD) 56 (2017), the BRB rejected application of Patterson, a published decision that has not been overruled in a published opinion, to a DBA case, citing Knipp (still unpublished), The administrative law judge in Herfi determined that guidance resulting from both Patterson and Knipp could be stated as “[t]here is no duty to seek more overseas employment after recovering from an overseas injury. But if a claimant does pursue overseas work after reaching [maximum medical improvement], overseas jobs become relevant alternate employment.” Decision and Order at 57. This decision oddly places a burden on employers of showing a claimant’s willingness to work overseas after a DBA injury, a burden no federal appellate court or other BRB precedent imposes.

The result of these decisions is that the BRB has severely restricted the application of Patterson through a string of unpublished decisions. How is a party supposed to know when the Board will reach back into its collection of unpublished, supposedly non-precedential opinions to revise or restrict a published case? How odd that the LHWCA, created by Congress to establish a system of uniformity for maritime workers, has been fractured not only by Courts of Appeals in so many areas (e.g., jurisdiction, average weekly wage, attorneys’ fees, labor market surveys) is further balkanized by the very tribunal created to interpret and uniformly apply the Act.

© Copyright 2017 Thomas C. Fitzhugh, III. All rights reserved. Reprinted with permission. This article will appear in an upcoming issue of Benefits Review Board Service - Longshore Reporter (LexisNexis).