A blog on practice in the Nation’s second-most powerful court

The D.C. Circuit’s (exceedingly low) view of unpublished opinions

A decision today involving Nigeria reveals the D.C. Circuit’s view of on-point unpublished opinions. Process and Indus. Dev. Ltd. v. Fed. Republic of Nigeria (No. 21-7003).

The question was this: Did Nigeria waive its sovereign immunity because it signed the New York Convention and agreed to arbitrate in a Convention state? In answering that question, the court admitted that in an earlier case involving Ukraine, those steps amounted to a waiver.

But not this time. It held that Nigeria lacked immunity for a different statutory reason. And why was the court not bound by its earlier decision? Not because Congress changed the statute (it hadn’t), or because the Supreme Court overturned the decision (it hadn’t), but because the earlier decision was “unpublished,” meaning “we have not formally adopted it.”

Now, there’s a long-running debate about the wisdom, and even legality, of unpublished opinions. And Ukraine might beg to differ on whether the D.C. Circuit “formally adopted” its earlier reasoning, which certainly applied formally to Ukraine. We don’t have space to get into those matters here.

For today, the point is that the D.C. Circuit will not feel constrained by the reasoning of unpublished opinions, no matter how on-point that reasoning may be, because it was not “formally adopted.”