Bluebook Guide: Fifth Circuit Split

The United States Court of Appeals for the Fifth Circuit originally covered Florida, Georgia, Alabama, Mississippi, Louisiana, and Texas.  In 1948, the Fifth Circuit gained appellate jurisdiction over the United States District Court for the Canal Zone.  On October 1, 1981, the Fifth Circuit was split with Alabama, Georgia, and Florida being moved to the new Eleventh Circuit.  On March 31, 1982, the Fifth Circuit lost jurisdiction over the Panama Canal Zone, which was transferred to Panamanian control.

The Fifth Circuit consists of Louisiana, Mississippi, and Texas.

Following the split, the Fifth Circuit was divided into two administrative units: Unit A (corresponding to the new Fifth Circuit) and Unit B (corresponding to the new Eleventh Circuit). This division raised new and complex issues regarding precedent.

In the new Fifth Circuit, decisions of the former Fifth Circuit are binding, regardless of the date and unit. This approach was logical because the "new" Fifth Circuit was a continuation of the old Fifth Circuit.

The rules regarding binding precedent in the new Eleventh Circuit are more complicated. Former Fifth Circuit cases decided on or before September 30, 1981, are binding precedent in the Eleventh Circuit unless they have been overruled by the Eleventh Circuit judges sitting en banc.

As for decisions of the former Fifth Circuit handed down after September 30, 1981, Unit B decisions and en banc decisions are binding precedent in the Eleventh Circuit, unless they have been overruled by the Eleventh Circuit judges sitting en banc.

Unit A en banc decisions and Unit A panel decisions decided after September 30, 1981, are only considered persuasive precedent in the Eleventh Circuit.

Naturally, The Bluebook sought to instill citation order to Fifth Circuit Split.  Under R10.8.2, p. 114, The Bluebook provided directions to cite cases decided during the transitional period leading to this reorganization according to the following rules.

• Cite decisions rendered in 1981 and labeled “5th Cir.” by month.
• Give unit information whenever available.
• Designate as “Former 5th Cir.”

In the section cited above, The Bluebook provides the following examples:

• Birl v. Estelle, 660 F.2d 592 (5th Cir. Nov. 1981).
• Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982).
• Trailways, Inc. v. ICC, 676 F.2d 1019 (5th Cir. Unit A Aug. 1981) (per curiam).
• McCormick v. United States, 680 F.2d 345 (Former 5th Cir. 1982).

The following examples are from Teply's excellent Legal Citation in a Nutshell.  This first example would be binding precedent in the new Fifth Circuit, but it would only be a persuasive precedent in the new Eleventh Circuit.

McGowen v. Faulkner Concrete Pipe Co., 659 F.2d 554 (5th Cir. Unit A Oct. 1981)

The following case would be binding precedent in the new Fifth Circuit, as well as in the Eleventh Circuit.

LaBanca v. Ostermunchner, 664 F.2d 65 (5th Cir. Unit B Dec. 1981).

Teply highlights that some cases decided after September 30, 1981 (but submitted for decision before that date) are labeled in the Federal Reporter as a “Former Fifth Circuit case” without providing unit information. These cases, often en banc, have an asterisk indicating that the statute splitting the court specified that further proceedings “shall be had in the same manner and with the same effect” as if the split had not occurred.  these cases must be identified as “Former 5th Cir” as set forth in the following example.

Kite v. Marshall, 661 F.2d 1027 (Former 5th Cir. 1981).

See Larry L. Teply, Legal Citation in a Nutshell 133-35 (3d ed., 2021).