Anastasoff v. U.S. The Continuing Controversy over the Precedential Effect of Unpublished Opinions

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Nov 2001

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Most practitioners are familiar with the local rules of the circuit courts of appeal
that allow courts to determine which opinions are suitable for publication and prohibit
citation to unpublished opinions as precedent. This system has been the subject of an
ongoing debate, which recently escalated when a panel of the Eighth Circuit held that
its local rule, which prohibited the use of unpublished opinions as precedent, was
unconstitutional. See <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… v. United States, 223 F.3d 898, 899
(8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir.
2000) (en banc)</a>.

Although vacated, Anastasoff breathed new life into a continuing controversy over
the precedential effect of unpublished opinions, receiving national attention from the
judiciary, legal commentators and practitioners. The debate will most likely continue
until the Supreme Court addresses the issue. Until then, practitioners should be aware
that although some courts may now be open to accepting unpublished opinions as
precedent, they could also encounter resistance, or face the possibility of sanctions,
if they challenge the constitutionality of these rules.

<h3>Non-precedential, Unpublished Opinions and No-citation Rules</h3>

The current system, which limits the publication of opinions and their precedential
value, originates from the 1964 U.S. Judicial Conference. In response to the
increased volume of cases and limited judicial resources, the conference recommended that
courts of appeal and district courts limit the publication of opinions to those with
precedential value. Judicial Conference of the United States, Report 11 (1964).
Despite this recommendation, limited publication standards were not generally accepted
until almost a decade later, when a Federal Judicial Center commission issued a
report on the standards for non-publication. Judicial Conference of the United States,
Report 12 (1973). Today, all eleven circuit courts of appeal limit the
publication of opinions and their precedential value. See Serfass, Melissa M. and
Cranford, Jessie L., "Federal and State Court Rules Governing Publication and
Citation of Opinions," 3 J. App. Prac. & Process, 251, 253-255
(Spring 2001).

Although each circuit has its own criteria, generally an opinion will be published
if it (1) establishes a new rule of law, (2) relates to a legal issue of
continuing legal interest, (3) creates a conflict with a decision of another
circuit, (4) affects an existing rule, (5) applies an existing rule to a
significantly different set of facts or (6) is a significant contribution to legal
literature. See 4th <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…. R. 36(a)</a>; 5th <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…. R. 47.5.1</a>; 6th <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=….
R. 206(a)</a>; 8th Cir. R. App. I (4).

In addition to the criteria for publication, local rules of the circuit courts of
appeal discourage, and sometimes even prohibit, citations to unpublished opinions. There
are, however, exceptions that allow citations to establish the law of the case, res
judicata or collateral estoppel. See 3d Cir. I.O.P. 5.8; 9th <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…. R.
36-3</a>; 5th <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…. R. 47.5.3</a> and 47.5.4 (the Fifth Circuit rules
divide unpublished opinions into two groups, allowing all unpublished opinions issued
before Jan. 1, 1996, to be cited as precedent). Many of the Bankruptcy
Appellate Panels have adopted similar rules. See 10th Cir. B.A.P. R.
8010-2; 9th Cir. B.A.P. R. 8013-1; 6th Cir. B.A.P. R.
8010-1.

A few of the circuits adopted a more expansive view, allowing the citation to
unpublished opinions if counsel believes the opinion has precedential or persuasive value
and there is no published opinion that would serve as well as the unpublished opinion.
See 4th <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…. R. 36(c)</a>; 6th <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…. R. 28(g)</a>; 8th <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…. R.
28A(i)</a>.

The publication and non-precedential rules have had ardent critics and supporters
since their inception. See Dragich, Martha J., "Will the Federal Courts of
Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain
and Justify Judicial Decisions Pose a Greater Threat?," <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… Am. U. L. Rev.
757 (1995)</a>; Arnold, Richard S., "Unpublished Opinions, A Comment," 1
J. App. Prac. & Process 219 (Summer 1999); Kozinski, Alex, and
Reinhardt, Stephen, "Please Don't Cite This! <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… We Don't Allow Citation to
Unpublished Dispositions," 20 Cal. Law. 43 (June 2000)</a>. The Anastasoff

opinion intensified the ongoing controversy, galvanizing the system's critics and
supporters.

<h3>Anastasoff v. United States</h3>Faye Anastasoff sought a refund for federal income tax and had three years to file
a refund claim. See <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; 223 F.3d at 899</a>. Although her claim was
timely mailed, it was received one day late and the Internal Revenue Service (IRS)
rejected her claim. <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; In response, Anastasoff argued that her claim was timely
filed under the "mailbox rule" of the Internal Revenue Code. <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; Anastasoff's
proposed interpretation had previously been rejected by the Eighth Circuit in a per
curium, unpublished opinion. On appeal, Anastasoff argued that the three-judge panel
was not bound by the decision because it was not precedent under Eighth Circuit Rule
28A(i). The court disagreed, holding the portion of 28A(i) that declares
unpublished opinions non-precedential and unconstitutional. <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…;

Writing for the Eighth Circuit panel, Judge Richard S. Arnold explained the
limits on the court's judicial power:

<blockquote>
Inherent in every judicial decision is a declaration and interpretation of a
general principle or rule of law. This declaration of law is authoritative to
the extent necessary for the decision, and must be applied in subsequent cases
to similarly situated parties. These principles, which form the doctrine of
precedent, were well established and well regarded at the time the nation was
founded. The framers of the Constitution considered these principles to derive
from the nature of judicial power, and intended that they would limit the
judicial power delegated to the courts by Article III of the Constitution.
Accordingly, we conclude that 8th Circuit Rule 28A(i), insofar as it
would allow us to avoid the precedential effect of our prior decisions, purports
to expand the judicial power beyond the bounds of Article III, and is
therefore unconstitutional.
</blockquote>

<a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; at 899-900</a> (citations omitted).

The court emphasized that they were not addressing whether all opinions should be
published, but whether "they ought to have precedential effect, whether published or
not." <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; at 904</a>.

Anticipating the criticism that would follow, the court stressed that the
practicalities that favor the current system, the volume of appeals and overworked
judges, cannot justify the courts ignoring the precedential effect of their opinions.
The rules are an unconstitutional expansion of the court's power because "rules like our
Rule 28A(i) assert that courts have the following power: to choose for themselves,
from among all the cases they decide, those that they will follow in the future,
and those that they will not." <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; at 904</a>.

The precedential effect of the Anastasoff opinion was itself short-lived. The
Eighth Circuit granted Anastasoff's petition for rehearing en banc, but found that
the case was moot because the IRS abandoned its prior interpretation of the statute
and agreed to give Anastasoff her full refund. As a result, the Eighth Circuit
vacated the prior judgement. See <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… v. United States, 235 F.3d
1054, 1055-56 (8th Cir. 2000)</a>. In doing so, the court stated that
the issue of whether 28A(i) is unconstitutional remains an open question in the
Eighth Circuit. <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; at 1056</a>.

<h3>Reaction and Continuing Controversy</h3>

Although the Anastasoff opinion was vacated, district courts have cited the opinion
to support their citation to unpublished opinions. See <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… v. Pepe, 150
F.Supp.2d 227 (D. Mass 2001)</a>, and to request review of the issue within
their own circuits; see <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… Video Inc. v. City of San Antonio, 2000 WL
33348240 (W.D. Tex. Oct. 2, 2000)</a> (stating that the
unpublished-opinion issue is worth the consideration of the Fifth Circuit because of
the similarities between the Fifth Circuit and Third Circuit Rules, a possible
trend, and the fact that the court's decision could have been aided by unpublished
opinions).

In addition, three Fifth Circuit judges recently dissented from a decision denying
a petition for rehearing en banc because the case provided the court with an
opportunity to "revisit the questionable practice of denying precedential status to
unpublished opinions." See <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… v. Dallas Area Rapid Transit, 256 F.3d
260 (5th Cir. June 26, 2001)</a> (Smith, J., dissenting from denial of
reh'g. en banc).

The Williams dissent aptly demonstrates the concerns raised by critics of
non-precedential opinions. In a previous unpublished case, a Fifth Circuit panel
affirmed a district court's determination that Dallas Area Rapid Transit (DART) was
a political subdivision of the state of Texas and was therefore immune from suit.

<a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; at 260</a>. Although the dissent agreed that the panel reached the correct result
under Fifth Circuit law in holding that DART was not immune from suit, it was
troubled that if the prior opinion had been published, it would have been binding on
the Williams panel. The dissent also recognized that the court's decision placed
DART's counsel in a predicament, because he could have reasonably advised his client
that it was immune from suit based on the prior ruling of another panel. <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…;

A Ninth Circuit panel, however, recently rejected the argument that
non-precedential opinions are unconstitutional. See <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… v. Massanari, 2001 WL
1111647 (9th Cir. Sept. 24, 2001)</a>. Authored by Judge Kozinski, the
opinion did not surprise those that had read Judge Kozinski's article on the subject.

See Kozinski, Alex and Reinhardt, Stephen, <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=… Don't Cite This! Why We Don't
Allow Citation to Unpublished Dispositions," 20 Cal. Law. 43 (June 2000)</a>
(distinguishing between unpublished opinions written for error correction and published
opinions written to develop the circuit's law).

In Hart, the Ninth Circuit ordered counsel for the appellant to show cause why
he should not be disciplined for citing an unpublished opinion in his opening brief,
in violation of the Ninth Circuit's rule. Relying upon Anastasoff, the appellant
argued that the rule might be unconstitutional. See <a href="http://www.westlaw.com/find/default.asp?rs=CLWP2.1&vr=1.0&cite=…; 2001 WL at *1</a>.
Recognizing that the Anastasoff opinion could "seduce" members of the Ninth Circuit bar
into violating its rules, the court wrote a compelling and lengthy opinion that
rejected the reasoning and practical implications of Anastasoff. Id. at *1.
Fortunately for the appellant's counsel, the court determined that he had a good-faith
basis to test the constitutionality of the rule and did not impose sanctions. Id.

at *15; but, see Dwyer v. J.I. Kislak Mortgage Corp., 12 P.3d 240,
244 (recognizing the existence of the Anastasoff opinion, but imposing sanctions
on counsel for citing unpublished, non-precedential opinions in violation of that court's
rule).

<h3>Conclusion</h3>

The continuing controversy over the precedential value of unpublished opinions will
likely continue until the Supreme Court addresses the issue. Whether one agrees or
disagrees with Anastasoff, the opinion has served a crucial purpose, focusing counsel
and the judiciary on the need to reassess the validity of an experiment that began
more than 20 years ago. The evaluation of this experiment must define and recognize
the need for precedent while balancing the needs of an already overburdened judiciary.
In the interim, practitioners should be aware that a good-faith basis might exist
to argue that a favorable, unpublished opinion is precedent, but that some courts will
be more receptive than others.

Journal Authors

Bruce H. White

Leane Capps Medford

William L. Medford

Journal Date

Thursday, November 1, 2001 - 12:00

Bankruptcy Rule

2001