Fifth Circuit Panel Issues 24-Page Unpublished Opinion In Favor Of Planned Parenthood and Reverses Judge Kacsmaryk⁩

Is this opinion a "one and done" decision to evade en banc review?

There is a long-running debate in FedCourts circles about unpublished opinions. These decisions, by their terms, are not precedential. Yet, lawyers, and some courts, will cite unpublished opinions as precedents. The line between published and unpublished is fuzzy at best.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There is another element of unpublished opinions that is less understood: because unpublished opinions are not precedent, there is less of a need to review them en banc. To be clear, the en banc court can review en unpublished opinion, but because the decision is not precedential, it may not be considered a good use of the court's resources.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 The panel  issued an unpublished opinion.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 But he also objected to the majority's decision to issue an unpublished opinion: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the opinion from the common-law tradition, by evading precedent, and by obscuring the path in the shroud of an unpublished per curiam opinion.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The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny.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.

Comments

[Dr. Ed 2]

Chance SCOTUS would take this?

[Noscitur a sociis]

Take what?

[Bored Lawyer]

IMO, the whole notion of unpublished decisions being less precedential cuts against the rule of law. If the court ruled one way in this case, that's the law. Future cases might be distinguishable. But that is no reason that the law as determined in this case should be less persuasive or precedential.

[bernard11]

Thanks, B.L. That was exactly the issue I was going to ask about. If the idea of precedent is based on the argument that the issue has been decided, why does it matter if the the judge(s) publish the opinion or not?

[Noscitur a sociis]

By that logic, why split the country into different geographic circuits at all? Why should a decision govern future case in Maryland any differently from a case in North Dakota?

[Martinned2]

You could definitely imagine a single Court of Appeals for the entire country, which simply sits in different places, but which legally counts as a single body with a single set of precedents. The only advantage of the current set-up is that it allows explicitly for circuit splits, which is how the Supreme Court knows which issues need to be addressed.

[MatthewSlyfield]

"The only advantage of the current set-up is that it allows explicitly for circuit splits, which is how the Supreme Court knows which issues need to be addressed."

Of course, some people think the Supreme Court's appellate docket should be less discretionary and that they should hear far more cases than they do.

[bernard11]

Why indeed.

[Ecreegan]

Splitting things up by geography limits the impact of other-than-final rulings. It also means that all jurisdictions where the subject arises have settled law while allowing for formal differences of opinion between courts, which the Supreme Court can then resolve.

[Lee Moore]

I share your prejudice.

But presumably there is a school of thought that thinks unpublished opinions are a good idea. Anyone got any idea what the argument in favor of them is ?

[Martinned2]

Like it says in the OP: It allows judges to write opinions without careful QA.

[MN2828]

Here is the Fifth Circuit's rule on publishing opinions:

47.5.1 Criteria for Publication. The publication of opinions that merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession. However, opinions that may in any way interest persons other than the parties to a case should be published. Therefore, an opinion is published if it:
(a) Establishes a new rule of law, alters, or modifies an existing rule of law, or calls attention to an existing rule of law that appears to have been generally overlooked;
(b) Applies an established rule of law to facts significantly different from those in previous published opinions applying the rule;
(c) Explains, criticizes, or reviews the history of existing decisional or enacted law;
(d) Creates or resolves a conflict of authority either within the circuit or between this circuit and another;
(e) Concerns or discusses a factual or legal issue of significant public interest; or
(f) Is rendered in a case that has been reviewed previously and its merits addressed by an opinion of the United States Supreme Court.

An opinion may also be published if it: Is accompanied by a concurring or dissenting opinion; or reverses the decision below or affirms it upon different grounds.

***

This particular opinion appears to meet the criteria for publication in that it "Concerns or discusses a factual or legal issue of significant public interest." On the other hand, the errors by the trial court could have been reversed using well-established legal principles, which would dictate against publication.

[MN2828]

Now having read the opinion, there is no reason for it to have been published. Basically, the court held that the plaintiff alleged that PP's lawyers acted inappropriately in litigation brought by the states of Texas and Louisiana. Because attorneys have immunity from suit by non-clients for litigation conduct under both state and federal law, the attorneys could not be sued. Since the attorneys could not be sued, the attorney's employer could not be sued.

As there are published cases in the 5th Circuit dealing with attorney immunity and this case breaks no new ground, there is no reason to publish it.

[bernard11]

There is a bit of game theory behind this move.

No there's not.

Smith faced a simple betting proposition. Smith's wagering decision has nothing to do with game theory.

[Please, Daivd, Seek Help]

No one is going to reply to this awesomely pedantic response but I just want to say I appreciate you for doing this.

[Mark Regan]

Your assertion that Judge Kacsmaryk found that "Planned Parenthood was liable for $2 billion in damages" is quite incorrect. The case has not gone to trial, and there has not been summary judgment that any defendant is liable for anything.

[not guilty]

Perhaps Professor Blackman regards truth as such a precious commodity that he uses it sparingly. It is disturbing that someone with so little regard for truth or falsity is teaching prospective lawyers.

[Noscitur a sociis]

The line between published and unpublished is fuzzy at best.

It is, in fact, exceptionally clear-cut.

[not guilty]

The attempts by abortion rights opponents to defund Planned Parenthood continue to puzzle me. I don't have specific numbers available, but I surmise that that organization and its affiliates furnish contraception to a far greater number of patients than they provide abortion services. The net result is a reduction in the number of abortions where PP serves its patient population.

[SRG2]

Because deep down many of these anti-abortion extremists don't want people to have sex, like those religious morons who don't want sex ed taught except for abstinence-only.

[AmosArch]

Its the far left that has been at the forefront of anti (heterosexual) sexuality for recent decades with the 'affirmative consent' nonsense and the legal mindfield they've grown up around any man who wants to engage in intimacy or even interact with women and ironic puritanish hostility toward (hetero) sexuality in culture. Quite successfully too judging by statistics, they've succeeded in making society more asexual beyond the dreams of the surliest 16th century nun.

[Martinned2]

Why are you complaining about that? It sounds like every conservative Christian's dream.

[damikesc]

Conservative Christians are exceptionally pro-sex.

Just amongst married couples.

Otherwise, tons of problems have a habit of arising.

[SRG2]

Conservative Christians are exceptionally pro-sex.
Just amongst married couples.

And high school coaches, and pastors

[AmosArch]

PP is a highly partisan organization that actively works against conservatives on multiple fronts so of course conservatives don't want their own hard earned dollars to go to fattening their paychecks. There are plenty of less actively partisan groups that can handle these medical services. PP doesn't have any secret juju that makes them the only ones that can hand out pills.

[not guilty]

So right wing butthurt matters more than preventing pregnancies? An embryo or fetus which has never been conceived will never be aborted.

By promoting contraception Planned Parenthood has prevented more abortions than an army of "sidewalk counselors" has ever dreamed of.

[damikesc]

"So right wing butthurt matters more than preventing pregnancies?"

They do not prevent anything outside of, you know, killing the baby and all.

"An embryo or fetus which has never been conceived will never be aborted."

The lion's share of what they do is abortion, based on revenue.

"By promoting contraception Planned Parenthood has prevented more abortions than an army of "sidewalk counselors" has ever dreamed of."

Except they have not. And even you aren't THAT dumb.

OK, that was unfair. You might well be that dumb.

[bernard11]

The lion's share of what they do is abortion, based on revenue.

But revenue is the wrong measure.

You should compare abortions performed to abortions prevented by preventing pregnancies. And of course encouraging birth control has other benefits as well.

[Dan Lo Pan 2]

Yes, the first time the right tried this argument in Texas, they published a list of supposed other BC providers, containing the names of dentists and chiropractors.

[Dan Lo Pan 2]

Oops, it was Louisiana not Texas.

https://www.motherjones.com/politics/2015/09/louisiana-said-women-could-go-dentist-if-planned-parenthood-were-defunded/

[damikesc]

"The attempts by abortion rights opponents to defund Planned Parenthood continue to puzzle me."

There is literally zero reason to fund them from the government. Let their donors foot the bill.

"The net result is a reduction in the number of abortions where PP serves its patient population."

There is zero evidence to bolster your assumption.

[halbax]

“ There is literally zero reason to fund them from the government. Let their donors foot the bill.”

They are funded by grant programs that Congress implemented to provide funding for organizations that implement programs to meet goals set by government agencies. And they receive receives reimbursements for providing medical services covered by public health coverage programs. So you think it is OK to set up these programs and then restrict an organization from participating based on their perceived politics?

[ReaderY]

I think every court of appeals opinion should be published and countable as precedent. Judges ahould stand behind their work.

[Griffin Klema]

Precisely.

[MN2828]

The 5th Circuit has a rule of orderliness which provides that one panel cannot overrule another panel on a question of law even if the earlier panel got it wrong. "It is “well-settled” in the Fifth Circuit that, even if a panel’s interpretation of the law appears flawed, 'one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.'” “This rule is strict and rigidly applied.” Texas v. Mayorkas https://www.ca5.uscourts.gov/opinions/pub/23/23-40653-CV0.pdf

As an unpublished opinion is citable but not precedential, a panel can avoid making law for the entire circuit by not publishing an opinion.

[A Japanese Student]

The distinction between unpublished and published made sense when cases were reported on paper books. It made sense to only publish decisions of interest - the decisions that established new law. Things like contract/insurance disputes, routine felony cases, pro-se litigations, etc, rarely met the standard.

Some of those rationales still apply to this day. Those who track recent developments in law only have to check decisions made precedential. And finally, I believe either party in a case can request the panel to publish the case.

(Biden DOJ should've intervened and dismissed this suit the moment Polansky was decided, but it's too late now.)

[ReaderY]

They could still have categories, e.g. “novel” or “routine,” to help as an aid to researchers. But the category shouldn’t affect the legal status of the decision or its usability as precedent. Categorizations are always imperfect.

And a particular vice that should be abolished is deliberately categorizing novel or important cases as routine so they can’t be used as precedent.

[Judge Magney]

Blackman's botching of the lower court's hardly gives confidence that his analysis of the case is correct. And the way the panel treated its opinion is something of a backhanded slap to Judge Matt K., signaling they viewed his treatment of the issues as wholly groundless and worthless

[John F. Carr]

Let's imagine the defendant was not the most foul, cruel, and bad-tempered rodent that ever gnawed a defenseless baby from its mother's womb. Would anybody care about this opinion?

Applying precedents of Texas and Louisiana law, and possibly making federal common law, the panel ruled the employer of a lawyer does not assume liability for the wrongs done by the lawyer's client, when the lawyer's acts fall within the bounds of normal advocacy.

[Griffin Klema]

This whole notion of "unpublished" decisionmaking has no foundation in history or tradition of the common law. EVERY decision was part of that body of law. Being added to a reporter by a third party publisher like John West to make those decisions easier to find by future lawyers and judges wasn't the magical moment it suddenly became "precedent."

Yet now the courts wrongly demarcate what purportedly "controls" future court decisions based purely on whether the very judges who issue that decision think it ought to. Rubbish. Lawyers (including myself) still cite to those decisions where they are relevant and persuasive. But for the reader of a court filing downplaying a Federal Appendix citation (which ironically is "published," but relegated to some lesser status), they're still decisions of an earlier court. Every court should be held accountable for the decisions they make, right or wrong. Everyone wishes they had more time to do things better, but that's life. No one can be perfect all the time, but providing a mechanism for judges to avoid doing their best (or worse, allowing them to decide a case the wrong way, contrary to reasoning and logic) by choosing when decisions are "unpublished" is a dubious and self-serving practice that erodes trust in the judicial system. "It's not binding because we said so." Really?! Since when does the decisionmaker also get to be the arbiter of the opinion's future usefulness? Every judge should be held to account for not only their judgment, but reasoning as well. The system shouldn't provide an explicit mechanism to incentivize laziness or outcome-driven decisionmaking. Yet here we are. And the public which relies on the judicial system is worse off for it.

In my opinion, publication "status" of court decisions (at all levels) is just another symptom of the currently broken judicial system. I've never seen any cogent argument for why publication status should have anything to do with whether a lower court or subsequent panel ought to follow it. It's just a greenlight for laziness or to avoid scrutiny.

[Kords]

Others have already pointed this out, but the blatant mischaracterization of the lower court proceedings is honestly flabbergasting. Judge Kacsmaryk had not "found that Planned Parenthood was liable for $2 billion in damages." He simply partially denied Planned Parenthood's motion for summary judgment. The Fifth Circuit's opinion doesn't even mention a damage figure, so Lord knows where you pulled that from.

[John F. Carr]

The cover sheet of the complaint demands $500 million. I have not read the entire collection of case documents to see if $2 billion is mentioned. https://www.courtlistener.com/docket/62341481/united-states-of-america-v-planned-parenthood-federation-of-america-inc/

[John F. Carr]

Politico mentions $2 billion.

A three-judge panel at the conservative-leaning 5th Circuit Court of Appeals on Wednesday reversed a lower court ruling that Planned Parenthood could be liable for nearly $2 billion for defrauding Medicaid.
The unanimous ruling overturns a decision by Texas U.S. District Court Judge Matthew Kacsmaryk, a Donald Trump appointee. In 2023, he ruled that Planned Parenthood had to return millions in funding it received from Texas and Louisiana’s Medicaid programs and used to provide services to low-income patients. Texas is also seeking more than a billion in damages as the case continues.

https://www.politico.com/news/2025/02/26/5th-circuit-planned-parenthood-abortion-00206327

[TheAmazingEmu]

At least on the state side of things, I haven't really seen published vs. unpublished as a criteria for en banc or not besides the usual reason that unpublished cases are often messy fact-intensive cases that would be difficult to apply outside of that specific context. I suspect, if an en banc was denied by overwhelming vote, it would have been denied either way.

[John F. Carr]

Unpublished decisions are supposed to be straightforward legal questions which everybody agrees on the answer to. Is 18 USC 922(b)(1) unconstitutional as applied to 18 to 20 year olds? If there is no circuit precedent the decision should be published. If there is circuit precedent the decision should not be published.

(The law cited says 20 year olds can't buy handguns or ammunition for handguns.)

[SRG2]

It would be interesting to see whether there was any detectable pattern to which cases courts declated unpublished.

Given personal prejudice, I expect to find a disproportionate number of cases involve suits against cops (see case #5 in today's Short Circuit), where by not publishing, the courts preserve and protect other cops' ability to mount a QI defence on similar facts. But I am prepared to be corrected.

[Noscitur a sociis]

I doubt it. Under Pearson v. Callahan, the court doesn’t have to decide the underlying constitutional question in finding for the officers. And to the extent they’re looking to help the police avoid liability, a published opinion saying that there’s no clearly established law is more useful.

[SRG2]

But if they publish in a case of QI, wouldn't that establish that going forward such actions would be established unconstitutional? Whereas unpublished, no such future declaration...

[cpltunny]

I find it amazing that an order which denied the plaintiff's motion for summary judgment somehow found Planned Parenthood liable for 2 billion dollars. How can you expect anyone to take you seriously?