Rates of Unpublished Opinions in the Different Circuits — And Especially the Fourth Circuit

I recently came across a new Fourth Circuit decision on a very interesting legal question addressed in an unpublished decision. In United States v. Makwana, the Fourth Circuit considered the proper interpretation of one of the provisions of the United States Sentencing Guidelines — §2B1.1(b)(14)(B)(i) , which gives a sentencing enhancement for an offense that substantially jeopardized the safety and soundness of a financial institution — to a hacker who had programmed malicious code into a Fannie Mae computer and was caught before the code was executed. As far as I know, there was no caselaw on this question at all; this case is the first in which the the issue has arisen. In reading over the opinion, I was struck by a sense of deja vu: Here was a Fourth Circuit opinion on a novel and interesting question of law, and yet the judges had for some reason decided to issue the opinion as an “unpublished” decision — that is, a decision that is not binding precedent in the circuit. I’ve encountered this often over the years. The Fourth Circuit seems particularly reluctant to issue published opinions.

I decided to look for some real numbers, and I found this chart on the rates of unpublished opinions by circuits from 9/2009 to 9/2010. Here are the numbers listed from the highest percentage of unpublished decisions to the lowest:

Circuit/Percentage of Opinions that are Unpublished
4th Circuit/ 93.0%
3rd Circuit/ 89.8%
11th Circuit/ 89.6%
2nd Circuit/ 88.3%
5th Circuit/ 87.4%
9th Circuit/ 86.9%
6th Circuit/ 83.6%
10th Circuit/ 77.5%
8th Circuit/ 71.8%
1st Circuit/ 65.1%
DC Circuit/ 62.3%
7th Circuit/ 59.8%

According to the chart, the Fourth Circuit is the least likely to issue published opinions. Last year, only 7% of 4th Circuit opinions were published.

The obvious question is, why do different circuits issue published opinions at such different rates? I gather that much of the reason is docket size. Published opinions take more time, so courts with smaller dockets should have more time to publish. Indeed, the DC Circuit and 1st Circuits have among the high publication rates but also have the the two smallest dockets, while the circuits with the lowest publication rates tend to have the highest number of opinions issued per judge.

Some of the reason may also just be circuit culture, or even just the influence of one or two judges. For example, I’ve often wondered if the Seventh Circuit issues so many published opinions on relatively trivial legal issues just to give Judge Posner a chance to ruminate in the F.3d about issues suggested (although not actually litigated) in the cases he decides.

Either way, it does seem to me that the Fourth Circuit is a bit different from the rest. I often come across unpublished Fourth Circuit opinions that should be published because they concern important questions, weigh in on circuit splits, and the like.