There is a long-running debate in FedCourts circles about unpublished opinions. These decisions, by their terms, are not precedential. Yet, lawyers, and some courts, will cite unpublished opinions as precedents. The line between published and unpublished is fuzzy at best.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There is another element of unpublished opinions that is less understood: because unpublished opinions are not precedent, there is less of a need to review them en banc. To be clear, the en banc court can review en unpublished opinion, but because the decision is not precedential, it may not be considered a good use of the court's resources.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 The panel issued an unpublished opinion.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 But he also objected to the majority's decision to issue an unpublished opinion:
