I was wrong about previous 9th Circuit rules for citation of published district court opinions
It is generally well-known in legal circles that the 9th Circuit federal court of appeals and 2-3 other federal circuits had local circuit rules generally prohibiting citation of unpublished opinions in any courts of those circuits and that those rules were superseded by a new national rule, Federal Rules of Appellate Procedure Rule 32.1, that allows citation of unpublished opinions in any federal court if the opinions were issued after Jan. 1, 2007 (but Rule 32.1 does not require that unpublished opinions be treated as binding precedent). However, I also vaguely seemed to remember an old local 9th circuit rule prohibiting the citation of federal district court opinions in any court of the 9th circuit, regardless of whether those opinions were published or not (though I now realize I was wrong -- logically, published district court opinions have always been citable in the 9th circuit). I was particularly concerned about such an old rule because of the exaggerated precedential value that Darwinists assumed for Kitzmiller v. Dover, the published district-court decision concerning intelligent design, and I thought it would be a big coup if I could show that there was a time when citation of Kitzmiller was banned in all the courts of the 9th Circuit! I had been unable to check the relevant old 9th circuit local rules because they are no longer posted online. However, I was recently able to make it down to the Los Angeles County Law Library's main branch, which has copies of the old rules. Here are the relevant old rules:
.
Circuit Rule 36-2 (e) applies to Kitzmiller because Kitzmiller is a published opinion by a lower court -- e.g., a district court. The wording of Circuit Rule 36-2 (e) is confusing, but I think it says that a 9th Circuit appeals court panel can adopt a published lower court opinion verbatim as an official 9th Circuit opinion if the panel thinks it is not necessary to add a clarification or modifications. However, in order for the panel to adopt the published lower court opinion, that opinion must first be cited, which couldn't be done if the opinion were not citable (per Circuit Rule 36-3) because it is not yet an official 9th Circuit opinion. So the only reasonable conclusion is that published district court opinions have always been citable in the 9th Circuit, so I was wrong in my previous belief that such opinions were not citable in the 9th circuit.
BTW, in my first 9th Circuit lawsuit against the unconstitutional California "smog impact fee," defendant California attached an entire unpublished district-court opinion to the state's first reply brief, and that was definitely in violation of the old circuit rule prohibiting citation of unpublished opinions!
.
.
Circuit Rule 36-2 -- Criteria for Publication (current rule -- not repealed)
A written opinion, reasoned disposition shall be designated as an OPINION only if it:
(a) Establishes, alters, modifies or clarifies a rule of law, or
- - - - - -
(e) -- is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel's disposition of the case, or
Repealed Circuit Rule 36-3 -- Other dispositions (superseded by national FRAP Rule 32.1)
Any disposition that is not an opinion or an order designated for publication under Circuit Rule 36-5 shall not be regarded as precedent and shall not be cited to or by this Court or any district court of the Ninth Circuit, either in briefs, oral argument, opinions, memoranda, or orders, except when relevant under the doctrines of the law of the case, res judicata, or collateral estoppel.
Circuit Rule 36-2 (e) applies to Kitzmiller because Kitzmiller is a published opinion by a lower court -- e.g., a district court. The wording of Circuit Rule 36-2 (e) is confusing, but I think it says that a 9th Circuit appeals court panel can adopt a published lower court opinion verbatim as an official 9th Circuit opinion if the panel thinks it is not necessary to add a clarification or modifications. However, in order for the panel to adopt the published lower court opinion, that opinion must first be cited, which couldn't be done if the opinion were not citable (per Circuit Rule 36-3) because it is not yet an official 9th Circuit opinion. So the only reasonable conclusion is that published district court opinions have always been citable in the 9th Circuit, so I was wrong in my previous belief that such opinions were not citable in the 9th circuit.
BTW, in my first 9th Circuit lawsuit against the unconstitutional California "smog impact fee," defendant California attached an entire unpublished district-court opinion to the state's first reply brief, and that was definitely in violation of the old circuit rule prohibiting citation of unpublished opinions!
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Labels: Kitzmiller v. Dover (new #2)
posted by Larry Fafarman | 7/25/2009 11:03:00 PM
20 Comments:
I think it's only a lower court if it is below the court in question. Since Kitzmiller was published in a district court in a different circuit, it doesn't apply.
What the rule actually means is that if the 9th Circuit is reviewing an appeal of a district court or administrative agency ruling that has been published, any decision the Circuit Court makes also has to be published as an opinion (which I understand makes it precedential).
[quote]BTW, in my first 9th Circuit lawsuit against the unconstitutional California "smog impact fee," defendant California attached an entire unpublished district-court opinion to the state's first reply brief, and that was definitely in violation of the old circuit rule prohibiting citation of unpublished opinions![/quote]
No, the rule only prohibited citations of unpublished 9th Circuit rulings. This doesn't apply to district court rulings, even those within the circuit. In fact, as I understand it, if California referenced an unpublished district court opinion, they were required by these rules to attach that opinion.
What's so confusing about Rule 62-2(e)? It basically just means that an appeal can be published if the original case or agency action was published.
Gizmo said,
>>>>> I think it's only a lower court if it is below the court in question. Since Kitzmiller was published in a district court in a different circuit, it doesn't apply. <<<<<<
What you "think" is wrong. Though these 9th Circuit rules say nothing about opinions from outside the 9th Circuit, it has always been assumed that the ban on citation of unpublished opinions applied to opinions from outside the 9th Circuit, so presumably these rules also apply to district court opinions -- both published and unpublished -- from outside the 9th Circuit.
>>>>>> What the rule actually means is that if the 9th Circuit is reviewing an appeal of a district court or administrative agency ruling that has been published, any decision the Circuit Court makes also has to be published as an opinion (which I understand makes it precedential). <<<<<<
That's true, but IMO the rule also says that the appeals court panel's opinion can just be a statement that the appeals court adopts the district court's or administrative agency's opinion as-is with no modification or clarification.
>>>>> No, the rule only prohibited citations of unpublished 9th Circuit rulings. This doesn't apply to district court rulings, even those within the circuit. In fact, as I understand it, if California referenced an unpublished district court opinion, they were required by these rules to attach that opinion. <<<<<<<
You don't know what in the hell you are talking about. If the rules did not allow the citation of an unpublished appeals court opinion (9th Circuit or otherwise), then how could these rules have allowed the citation of an unpublished district court opinion? California was prohibited from even referencing the unpublished district court opinion, let alone attaching the opinion to the state's brief.
Wayne said,
>>>>>> What's so confusing about Rule 62-2(e)? It basically just means that an appeal can be published if the original case or agency action was published. <<<<<<<
You mean Rule 36-2 (e), not 62-2 (e).
I was trying to make sense out of the statement, "unless the panel determines that publication is unnecessary for clarifying the panel's disposition of the case." IMO the only reasonable interpretation of this statement is that it means that the appeals court panel's opinion can just be a statement that the appeals court adopts the district court's or administrative agency's published opinion as-is -- with no modification or clarification -- as an official published 9th Circuit opinion.
Huh. How did I type that?
Oh, I see your confusion. No, what the first part means is that normally the Circuit Court has to publish an official opinion when considering an appeal of a published decision. However, the second part, the one you find confusing, allows the Court to decline to publish if they don't think it's necessary. Remember, under the old rules, if the 9th Circuit published a disposition, it became binding precedent. So if a published district court opinion was appealed on a routine procedural issue, for example, the court might not want to make precedent. The second clause gives them that out.
Wayne said,
>>>>> Huh. How did I type that? <<<<<
You mean the wrong rule number.
>>>>>> No, what the first part means is that normally the Circuit Court has to publish an official opinion when considering an appeal of a published decision. <<<<<<<
WHAT? That makes no sense at all. Why in hell should the Circuit Court "normally" have to publish an official opinion just because the court is considering an appeal of a published decision? Why in hell should the publisher of the original decision "normally" have the power to decide whether or not the appeals decision gets published? And the original decision might be published after the appeals decision is made.
The wording of Rule 36-2 (e) is ambiguous and confusing. What the rule should say -- if it says anything at all (what the rule should say should go without saying) -- is that 9th circuit "opinions" (such opinions are defined as binding 9th Circuit precedent) include published opinions (from another court or an administrative agency) that are officially adopted, with or without modification or clarification, in a published opinion by a 9th Circuit panel. Duh.
>>>>WHAT? That makes no sense at all. Why in hell should the Circuit Court "normally" have to publish an official opinion just because the court is considering an appeal of a published decision? Why in hell should the publisher of the original decision "normally" have the power to decide whether or not the appeals decision gets published? And the original decision might be published after the appeals decision is made.<<<<
Sorry, that was poorly phrased on my part. Let's try that again. The first clause, by itself, normally would mean that the court would have to publish the results of an appeal. The second clause makes that optional. In other words, Rule 36-2(e) allows publication of an appeal of a published case or action, even where it would otherwise not meet criteria for publication, but does not make it mandatory (thus avoiding the situation you just described).
Why would the court want to publish in this case? Well, it might agree with the outcome, but disagree with the reasoning behind it. Or it might agree with the reasoning, but disagree with the outcome. Or it may simply want to adopt the lower court's reasoning as its own. Or it may want to completely repudiate the lower court's reasoning.
Wayne said,
>>>>>> Sorry, that was poorly phrased on my part. Let's try that again. <<<<<<<
Whatever. I think Rule 36-2 (e) is superfluous, because it goes without saying that the 9th Circuit appeals court may adopt -- in whole or in part -- another authority's published opinion as the 9th Circuit' appeals court's published opinion. And the wording of Rule 36-2 (e) is ambiguous and confusing.
[quote]Whatever. I think Rule 36-2 (e) is superfluous, because it goes without saying that the 9th Circuit appeals court may adopt -- in whole or in part -- another authority's published opinion as the 9th Circuit' appeals court's published opinion. And the wording of Rule 36-2 (e) is ambiguous and confusing.[/quote]
36-2(e) doesn't say anything about adopting other published opinions. It allows the court to publish its own opinion in response to an appeal of a published opinion. Obviously, this could include adopting part or all of the lower opinion, but that is not the point of the rule. It doesn't need the rule to adopt part or all of the opinion, it needs the rule to publish a response when the circuit court opinion doesn't meet any of the other requirements for publication.
Gizmo said,
>>>>>> 36-2(e) doesn't say anything about adopting other published opinions. <<<<<<
WHAT? 36-2 (e) is solely about adopting other published opinions.
>>>>>> It allows the court to publish its own opinion in response to an appeal of a published opinion. <<<<<<
It goes without saying that the court has the right to do that.
>>>>>> Obviously, this could include adopting part or all of the lower opinion, but that is not the point of the rule. <<<<<<
Wrong -- that is the point of the rule. Also, you are contradicting yourself -- you just said that "36-2(e) doesn't say anything about adopting other published opinions," now you are saying "this could include adopting part or all of the lower opinion."
>>>>> It doesn't need the rule to adopt part or all of the opinion, <<<<<<<
That's what I have been saying.
>>>>> it needs the rule to publish a response when the circuit court opinion doesn't meet any of the other requirements for publication. <<<<<<
Why should the circuit court publish an adoption of another authority's opinion that does not meet the criteria for publication of the court's own opinions? Here are the other criteria, from Circuit Rule 36-2:
A written, reasoned disposition shall be designated as an OPINION only if it:
(a) Establishes, alters, modifies or clarifies a rule of law, or
(b) Calls attention to a rule of law which appears to have been generally overlooked, or
(c) Criticizes existing law, or
(d) Involves a legal or factual issue of unique interest or substantial public importance, or
(e) - - - -
(f) is a disposition of a case following a reversal or remand by the United States Supreme Court, or
(g) Is accompanied by a separate concurring or dissenting expression, and the author of the separate expression requests publication of the disposition of the Court and the separate expression.
It was not my intention to get into a big general discussion of Circuit Rule 36-2 -- I just wanted to show that I was mistaken in my previous belief that the 9th Circuit used to ban citation of all district court opinions, whether published or not.
Larry, why did you publish my second comment of the morning and not my first? This is my fourth today, btw.
>>>>>> why did you publish my second comment of the morning and not my first? <<<<<<
I couldn't find your first comment in my records. Could you re-submit it?
The following was the first comment I made today:
-------------------------------
[quote]What you "think" is wrong.[/quote]
Why do you think that what I think is wrong? How can a circuit court consider an appeal of a district court from another circuit?
[quote]Though these 9th Circuit rules say nothing about opinions from outside the 9th Circuit, it has always been assumed that the ban on citation of unpublished opinions applied to opinions from outside the 9th Circuit, so presumably these rules also apply to district court opinions -- both published and unpublished -- from outside the 9th Circuit.[/quote]
Assumed by whom? Has anyone but you actually made this assumption? When the new Federal Rule was being discussed, all the legal scholars were explaining that some but not all of the courts that had a rule like the 9th circuit would observe the rules of the other courts wrt their rule (I believe this was called reciprocity). Example:
Circuits A, B, C. Circuits A and B have rules similar to the 9th Circuit, Circuit C does not. Circuit A will not permit citation of unpublished A and B circuit court opinions, but will allow citation of unpublished Circuit C decisions. Circuit B does not allow citation of unpublished Circuit B circuit court opinions, but does allow citation of Circuits A and C decisions.
None of the scholars mentioned anything about it applying to district court opinions, and most of them specifically stated that it applied to circuit court decisions.
[court]You don't know what in the hell you are talking about. If the rules did not allow the citation of an unpublished appeals court opinion (9th Circuit or otherwise), then how could these rules have allowed the citation of an unpublished district court opinion? California was prohibited from even referencing the unpublished district court opinion, let alone attaching the opinion to the state's brief.[/court]
It's quite simple. The rule (36-3) only applied to 9th Circuit decisions. That the 9th Circuit chose to honor other Circuits' equivalent rules does not mean that this rule applied to those other circuits' decisions, and the 9th Circuit permitted citation of unpublished decisions from circuits that did not have this rule. And as you have known (or should have known, since this info was posted to your own blog) for over two years, the 9th Circuit ruled in a published opinion that this rule did not apply to unpublished district court opinions.
Since my third comment still hasn't appeared, I am resubmitting it as well:
---------------------------
[quote]WHAT? 36-2 (e) is solely about adopting other published opinions.[/quote]
No it doesn't. Nowhere does it say anything about adopting other published opinions. Let's break it down:
"A written opinion, reasoned disposition shall be designated as an OPINION only if it:"
MEANS
A disposition (ie, final judgment on some or all aspects of a case or action) can only be published if it meets (one of) the following criteria:
(Isn't that supposed to be "A well-written, reasoned disposition..."?)
"(e) -- is a disposition"
MEANS
a final judgment by the Circuit Court
"of a case in which there is a published opinion"
MEANS
the disposition is of a case in which there already exists a written opinion
"by a lower court or administrative agency,"
MEANS
the written opinion is by a court or agency in the Circuit Court's jurisdiction
"unless the panel determines that publication is unnecessary for clarifying the panel's disposition of the case"
MEANS
the Circuit Court doesn't have to publish if it doesn't feel it would be helpful to do so
Now, where in all of that do you get adopting the lower courts opinion?
[quote]It goes without saying that the court has the right to do that.[/quote]
Let's take a look at that list of other criteria you posted:
"(a) Establishes, alters, modifies or clarifies a rule of law, or"
Well, that goes without saying that the court has the right to do that.
"(b) Calls attention to a rule of law which appears to have been generally overlooked, or"
Well, that goes without saying that the court has the right to do that.
"(c) Criticizes existing law, or"
Well, that goes without saying that the court has the right to do that.
"(d) Involves a legal or factual issue of unique interest or substantial public importance, or"
Well, that goes without saying that the court has the right to do that.
"(f) is a disposition of a case following a reversal or remand by the United States Supreme Court, or"
Well, that goes without saying that the court has the right to do that.
"(g) Is accompanied by a separate concurring or dissenting expression, and the author of the separate expression requests publication of the disposition of the Court and the separate expression."
Well, that goes without saying that the court has the right to do that.
So according to your logic, the whole of Rule 36-2 is pointless. So why do they include it?
Because by listed everything that is allowed to be published, anything else is [b]not[/b] allowed to be published.
[quote]Wrong -- that is the point of the rule. Also, you are contradicting yourself -- you just said that "36-2(e) doesn't say anything about adopting other published opinions," now you are saying "this could include adopting part or all of the lower opinion."
[/quote]
You quoted my response. Does that mean you have adopted my argument?
[quote]It was not my intention to get into a big general discussion of Circuit Rule 36-2 -- I just wanted to show that I was mistaken in my previous belief that the 9th Circuit used to ban citation of all district court opinions, whether published or not.[/quote]
And in fact, as was pointed out over two years ago right here on this blog, the Circuit never banned citation of any district court opinions, whether published or not.
THIS COMMENT IS SPLIT INTO TWO PARTS BECAUSE I HAVE EXCEEDED THE LIMIT OF 4,096 CHARACTERS.
PART 1
Gizmo, as I indicated, this discussion is beyond the scope of this article's purpose. And as I said, Rule 36-2 (e) is ambiguous and confusing -- we are not debating about what the rule actually says but are only debating about what the rule implies or suggests. It is like debating about how many angels can dance on the head of a pin.
>>>>>>> Nowhere does it say anything about adopting other published opinions. <<<<<<<
I don't see how you can say that -- Rule 36-2 (e) is clearly about adopting other published opinions -- the circuit court has the option of choosing which published opinions (either as-is or clarified/modified) from other authorities represent published opinions of the circuit court.
>>>>>> "of a case in which there is a published opinion"
MEANS
the disposition is of a case in which there already exists a written opinion
"by a lower court or administrative agency," <<<<<<<
No -- there already exists a published -- not just a "written" -- opinion by a lower court or administrative agency.
>>>>>>>A disposition (ie, final judgment on some or all aspects of a case or action) can only be published if it meets (one of) the following criteria: <<<<<<
Actually, orders as well as opinions can be published -- see Circuit Rule 36-3 above.
>>>>> (Isn't that supposed to be "A well-written, reasoned disposition..."?) <<<<<<
No, I checked the original and "well" is not there. I don't think that the court would want to exclude opinions that are not well-written.
>>>>>> "by a lower court or administrative agency,"
MEANS
the written opinion is by a court or agency in the Circuit Court's jurisdiction <<<<<<<
Wrong. The administrative agency could be a national federal agency or another agency not under the jurisdiction of the 9th Circuit. And as a practical matter, the rule must apply to courts not under the 9th Circuit court's jurisdiction -- e.g., other circuit courts, district courts outside the 9th circuit, and state courts.
END OF PART 1. PART 2 IS IN NEXT COMMENT.
PART 2
>>>>> "unless the panel determines that publication is unnecessary for clarifying the panel's disposition of the case"
MEANS
the Circuit Court doesn't have to publish if it doesn't feel it would be helpful to do so <<<<<<
The Circuit Court must publish something just to show that it has adopted the opinion of another authority. IMO what the court meant was that re-publication of all or part of the other authority's opinion is not necessary if the circuit court panel does not want to clarify or modify anything -- the panel can just reference the adopted opinion.
>>>>> Now, where in all of that do you get adopting the lower courts opinion? <<<<<<
How can another authority's opinion become an official, binding 9th Circuit opinion without being "adopted" by the 9th Circuit? This is just a matter of the definition of the word "adoption."
>>>>>>>
Well, that goes without saying that the court has the right to do that.
Well, that goes without saying that the court has the right to do that.
Well, that goes without saying that the court has the right to do that.
Well, that goes without saying that the court has the right to do that.
Well, that goes without saying that the court has the right to do that.
Well, that goes without saying that the court has the right to do that.
So according to your logic, the whole of Rule 36-2 is pointless.
>>>>>>>>
Well, that is true to a great extent -- all Rule 36-2 does is suggest reasons for publishing an opinion.
>>>>>> You quoted my response. Does that mean you have adopted my argument? <<<<<<
WHAT? That doesn't follow at all.
>>>>> And in fact, as was pointed out over two years ago right here on this blog, the Circuit never banned citation of any district court opinions, whether published or not. <<<<<<
Wrong -- the Circuit banned citation of unpublished district court opinions along with other unpublished opinions. I also seemed to remember that the Circuit also banned citation of published district court opinions, but I was wrong. No one had any proof or evidence that I was wrong. I made a special trip down to the central branch of the Los Angeles County Law Library -- it took two buses and a subway ride -- to get the evidence, and then I admitted I was wrong. I deserve credit for that.
[quote]Wrong -- the Circuit banned citation of unpublished district court opinions along with other unpublished opinions. I also seemed to remember that the Circuit also banned citation of published district court opinions, but I was wrong. No one had any proof or evidence that I was wrong.[/quote]
Wrong. The proof was posted to your blog over two years ago. Allow me to recreate the original comment:
---------------------------
W. Kevin Vicklund said...
The 9th Circuit, in a published opinion, held
that Rule 36-3 only applied to the dispositions of the 9th Circuit Court:
4. We deny Dun & Bradstreet’s Motion to Strike Portions of Renick’s Brief and Excerpts of Record and Request for Sanctions for citing an unpublished order of the District Court for the Southern District of California. Ninth Circuit Rule 36-3 quite clearly prohibits citations only of our unpublished dispositions; it does not apply to unpublished dispositions issued by any other courts within our circuit or elsewhere. See Ninth Cir. R. 36-3.
Friday, May 11, 2007 2:11:00 PM
------------------------------
You, sir, are wrong.
My apologies, I forgot to link to Kevin's original comment.
Gizmo said (Tuesday, July 28, 2009 2:41:00 PM) --
>>>>> The following was the first comment I made today:
How can a circuit court consider an appeal of a district court from another circuit? <<<<<<
A circuit court cannot consider an appeal from a district court in another circuit, but can consider an opinion from a district court in another circuit. For example, suppose that there is a monkey trial in California -- the 9th Circuit might want to consider adopting all or part of the Kitzmiller v. Dover opinion (heaven forfend) as a binding opinion of the 9th circuit.
>>>>> [quote]Though these 9th Circuit rules say nothing about opinions from outside the 9th Circuit, it has always been assumed that the ban on citation of unpublished opinions applied to opinions from outside the 9th Circuit, so presumably these rules also apply to district court opinions -- both published and unpublished -- from outside the 9th Circuit.[/quote]
Assumed by whom? Has anyone but you actually made this assumption? <<<<<<
It is the only reasonable assumption -- there are no other rules to apply to opinions from outside the 9th Circuit.
>>>>>> Circuits A, B, C. Circuits A and B have rules similar to the 9th Circuit, Circuit C does not. Circuit A will not permit citation of unpublished A and B circuit court opinions, but will allow citation of unpublished Circuit C decisions. Circuit B does not allow citation of unpublished Circuit B circuit court opinions, but does allow citation of Circuits A and C decisions. <<<<<<<
That's ridiculous -- a circuit's rules are not going to discriminate against the opinions of circuits that restrict citations of other circuits' unpublished opinions.
>>>>>> It's quite simple. The rule (36-3) only applied to 9th Circuit decisions. That the 9th Circuit chose to honor other Circuits' equivalent rules does not mean that this rule applied to those other circuits' decisions, and the 9th Circuit permitted citation of unpublished decisions from circuits that did not have this rule. <<<<<<<
Wrong, bozo. How could the 9th Circuit have permitted citation of unpublished decisions from other circuits when the 9th Circuit did not permit citation of its own unpublished decisions?
>>>>>> And as you have known (or should have known, since this info was posted to your own blog) for over two years, the 9th Circuit ruled in a published opinion that this rule did not apply to unpublished district court opinions. <<<<<<<
What published opinion? Where? You stupid fathead, how could the rules have allowed citation of unpublished district court opinions when the rules did not even allow citation of unpublished 9th Circuit appeals court opinions?
I tried to be patient with you, even though this discussion has been well beyond the scope of this article. You are now just cluttering up this blog with garbage. My patience is now at an end.
Gizmo said,
>>>>> I forgot to link to Kevin's original comment. <<<<<
It was posted about 11 days after my last comment -- that is probably why I didn't notice it.
>>>>> You, sir, are wrong. <<<<<<<
No, bozo, I am not wrong -- that decision is wrong.
The 9th Circuit opinion said,
Ninth Circuit Rule 36-3 quite clearly prohibits citations only of our unpublished dispositions; it does not apply to unpublished dispositions issued by any other courts within our circuit or elsewhere.
No, it is not clear at all. Dispositions outside the 9th Circuit appeals court are not mentioned at all -- therefore there is no specific rule to apply, and so common sense should govern how the rules are applied, and the above ruling is completely contrary to the general rules of giving more weight to the opinions of higher courts and less weight to opinions of other circuit courts. There are other situations where common sense applies in interpreting court rules -- for example, amicus briefs are not mentioned in the Federal Rules of Civil Procedure which govern the federal district courts. Does this mean that amicus briefs are not allowed in federal district courts? Not at all -- the amicus brief rules of the Federal Rules of Appellate Procedure are used in the federal district courts.
It is widely -- maybe almost universally -- believed that the 9th Circuit ban on citation of unpublished opinions applied to all unpublished opinions -- see this article and this article. Ironically, one of the judges on the panel that made the ruling you cited was Alex Kozinski, who was the leading opponent of new FRAP Rule 32.1 that allows citations of unpublished opinions in all federal courts -- law articles said,
"Because unpublished opinions tend to be thin on the facts, and written in loose, sloppy language -- and because there's about a zillion of them out there -- they will create a veritable amusement park for lawyers fond of playing games," says 9th Circuit Judge Alex Kozinski, the leading opponent of the rule, in a 22-page letter to the committee.
-- and --
In testimony before a House Judiciary Committee hearing last year, Kozinski described unpublished opinions as "simply a letter to the parties telling them who won and who lost, and why."
Also, citation of unpublished opinions is discussed in this article on this blog.
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