No

No. 01-14124-EE

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________

MICHAEL SCHMIER,

Plaintiff-Appellant,

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT and JUDICIAL COUNCIL OF THE ELEVENTH CIRCUIT,

Defendants-Appellees.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

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BRIEF FOR THE APPELLEES

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ROBERT D. MCCALLUM, JR.

Assistant Attorney General

THOMAS F. KIRWIN

United States Attorney

DOUGLAS N. LETTER

(202) 514-3602

KATHLEEN A. KANE

(202) 514-3972

Attorneys, Appellate Staff

Civil Division, Room 9605

Department of Justice

601 D Street, N.W.

Washington, D.C. 20530-0001

________________________________________________________________

Schmier v. United States Court of Appeals for the Eleventh Circuit and Judicial Council of the Eleventh Circuit,

No. 01-14124-EE

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

Hinkle, Hon. Robert L.

Judicial Council of the Eleventh Circuit

Kane, Kathleen A.

Kirwin, Thomas F.

Letter, Douglas N.

McCallum, Robert D., Jr.

Schmier, Michael

United States Court of Appeals for the Eleventh Circuit

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________

No. 01-14124-EE

____________________

MICHAEL SCHMIER

Plaintiff-Appellant,

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT and JUDICIAL COUNCIL OF THE ELEVENTH CIRCUIT,

Defendants-Appellees.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

____________________

BRIEF FOR THE APPELLEES

____________________

STATEMENT OF SUBJECT MATTER AND

APPELLATE JURISDICTION

Plaintiff invoked the jurisdiction of the district court under 28 U.S.C. § 1331. The district court dismissed plaintiff’s action on May 23, 2001, concluding that plaintiff lacked Article III standing. Plaintiff filed a timely notice of appeal on July 20, 2001. This Court has jurisdiction pursuant to

28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether plaintiff has standing to bring this action given his obvious lack of concrete personal harm caused by the Eleventh Circuit rules whose validity he challenges.

2. Whether Eleventh Circuit Rules 36, 36-1, 36-2, and 36-3, regarding precedential weight for various opinions, are consistent with the judicial power under Article III of the Constitution.

STATEMENT OF THE CASE

A. Nature of the case.

Plaintiff Michael Schmier, an attorney licensed to practice in California, sued the United States Court of Appeals for the Eleventh Circuit and the Judicial Council of the Eleventh Circuit (Eleventh Circuit) in the Northern District of Florida. Schmier sought a writ of mandamus or other appropriate action to enjoin the enforcement of Eleventh Circuit Rules 36-1, 36-2, and 36-3, which govern the publication and precedential status of certain cases decided by the Court. In particular, plaintiff demanded an order that would require all dispositions of the Eleventh Circuit to be published and would give those dispositions binding, precedential effect within the Circuit.

The district court dismissed the complaint before defendants entered an appearance, finding that Shmier lacked standing. The court noted that plaintiff failed to allege any current or even possible future injury to himself resulting from the enforcement of the challenged rules, other than a generalized interest in defendants' performance of their constitutional duties. Plaintiff now appeals.

B. Relevant rules.

Congress has authorized the federal courts, including the circuit courts of appeals, to "prescribe rules for the conduct of their business." 28 U.S.C. § 2071(a). That section requires

that "[s]uch rules . . . be consistent with Acts of Congress and [with] rules of practice and procedure" that the Supreme Court prescribes pursuant to its authority under 28 U.S.C. § 2072.¹ Congress has empowered the Supreme Court and the Judicial Councils of the circuits² to exercise a degree of control over such rules.

The Eleventh Circuit rules were adopted pursuant to section 2071(a) and Federal Rule of Appellate Procedure 47, in order to promote the effective and expeditious administration of justice within the Circuit. See Fed.R.App.P. 47; Eleventh Circuit Rules, Introduction. The rules at issue in this case, Eleventh Circuit Rules 36-1, 36-2, and 36-3, govern the publication and citation of the Court's decisions.

Eleventh Circuit Rule 36-1 provides that the Court may affirm a judgment of the district court without opinion when the following conditions are met: judgment is based on findings of fact that are not clearly erroneous, the jury verdict is sufficiently supported by the evidence, an administrative agency's order is supported by substantial evidence, a summary judgment, directed verdict, or judgment on the pleadings is supported by the record, the judgment has been entered without a reversible error of law, and the Court of Appeal's opinion would have no precedential value. Eleventh Circuit Rule 36-1.

Eleventh Circuit Rule 36-2 allows for unpublished opinions. It provides:

An opinion shall be unpublished unless a majority of the panel decides to publish it. Unpublished opinions are not considered binding precedent. They may be cited as persuasive authority, provided that a copy of the unpublished opinion is attached to or incorporated within the brief, petition, motion or response in which such citation is made.

Eleventh Circuit Rule 36-2. Eleventh Circuit Rule 36-3 provides a mechanism for publishing previously unpublished dispositions, either through a party's motion or the panel's own initiative: "At any time before the mandate has issued, the panel, on its own motion or upon the motion of a party, may by unanimous vote order a previously unpublished opinion to be published." Eleventh Circuit Rule 36-3.

The Internal Operating Procedure (IOP) following Rule 36-3 elaborates on the Court's publication policy. It states that the policy of the Court is that the "unlimited proliferation of published opinions is undesirable because it tends to impair the development of the cohesive body of law." Eleventh Circuit IOP 36-3 ¶ 5. The IOP explains that "[a]lthough unpublished opinions may be cited as persuasive authority, they are not considered binding precedent," and it notes that parties to a case may request publication of an unpublished opinion through an appropriate motion. Ibid.

C. Factual background.

Plaintiff Schmier is an attorney licensed to practice law in California. Appellant's Record Excerpt [RE] 12; Order of Dismissal, at 1. He is not a member of the Eleventh Circuit bar. Ibid. Plaintiff's complaint does not allege that he practices law within the Circuit, or that he has ever attempted to cite or rely upon an unpublished disposition of this Court. The complaint merely states that plaintiff is a citizen and a taxpayer, and has "clear, present, and substantial constitutional and federal statutory rights to the performance of [defendants'] duties," and is "personally concerned" that those duties are performed. RE 1; Complaint ¶ 1.

D. Procedural history.

Plaintiff, appearing pro se, filed this action in the Northern District of Florida on December 5, 2000. He sought a writ of mandamus or prohibition, an injunction, and other appropriate relief, including declaratory relief, to prohibit continued implementation of Eleventh Circuit Rules 36-1, 36-2, and 36-3. RE 1: Prayer for Relief, ¶¶ 1-5. In accordance with the district court's procedures for pro se matters, the case was referred to a magistrate judge. The magistrate issued an order to show cause why the complaint should not be dismissed for ineffective service and lack of standing. N.D. Fla. dkt # 5. Following a response with supporting declaration by plaintiff, the magistrate issued his report and recommendation that the complaint should be dismissed for ineffective service and lack of standing. N.D. Fla. dkt # 10. Plaintiff filed his objections to the report, N.D. Fla. dkt # 11, and the district court issued its order and judgment dismissing the case for lack of standing. N.D. Fla. dkt #s 12 & 13.

In its order dismissing the complaint, the district court acknowledged the magistrate's recommendation that the case should be dismissed for ineffective service under Fed. R. Civ. P. 4, but ruled on the issue of standing. RE 12; Order of Dismissal, at 3. The court found that plaintiff had failed to allege any actual or imminent injury from the challenged rules, other than a generalized interest as a citizen in the administration of justice. Id. at 4. The district court therefore dismissed, and plaintiff has appealed. RE 14.

E. Standard of review.

The dismissal of the complaint for lack of standing is reviewed de novo. Smith v. Shook, 237 F.3d 1322, 1324 (11th Cir.), cert. denied, __ U.S. __, 121 S.Ct. 2225 (2001).

SUMMARY OF ARGUMENT

Despite multiple opportunities to do so, plaintiff has alleged no facts that would support a finding that he has Article III standing to bring this action. Plaintiff has never asserted that he has suffered any present or even potential future concrete injury personal to him as a result of Eleventh Circuit Rules 36-1, 36-2, and 36-3. The generalized interest he expresses in what he sees as the proper exercise of the judicial power is constitutionally insufficient to support federal court jurisdiction. Because, even taking all facts and inferences in his favor, plaintiff cannot establish his standing, he is not entitled to remand for an evidentiary hearing on the issue. The district court's dismissal of the complaint for lack of standing should therefore be affirmed.

Plaintiff's case also plainly fails on the merits. The judicial power established in Article III of the United States Constitution in no way requires or implies that every disposition of the federal courts must be published and treated as binding precedent. Plaintiff's claims lack both textual and historical support. The Constitution is silent on administrative matters of the federal courts under the Supreme Court. The historical record demonstrates that the practice of publication and binding precedent was so informal and diverse that the Framers manifestly did not intend modern notions of rigid adherence to precedent to be enshrined, sub silentio, in Article III. Plaintiff's other claims on the merits are also all without substance.

ARGUMENT

I. PLAINTIFF LACKS STANDING AND HIS COMPLAINT WAS PROPERLY DISMISSED.

A. Plaintiff Schmier has failed to establish that he has standing. As an attorney practicing in California, he has not alleged any concrete injury personal to himself from the Eleventh Circuit's rules allowing certain dispositions to be unpublished. The only "injury" indicated by the complaint is a generalized interest in the proper exercise of defendants' constitutional duties. Even when alerted to the problem by the magistrate's report, plaintiff supplied no additional information that would support a finding of standing. Plaintiff is not entitled to defer the issue of his standing until trial, and he has failed even to suggest adequate grounds to support jurisdiction in this case.

Under Article III of the Constitution, the federal courts may only adjudicate actual, ongoing controversies. See Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998). Article III requires at a minimum that the party invoking an Article III court's authority show "[1] that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, [2] that the injury fairly can be traced to the challenged action, and [3] [that the injury] is likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). See also Bischoff v. Osceola County, 222 F.3d 874, 878 (11th Cir. 2000).

Plaintiff cannot rest on a generalized interest, such as that as a citizen, or even an attorney, to provide standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992) ("We have consistently held that a plaintiff raising only a generally available grievance about government‑‑claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large‑‑does not state an Article III case or controversy").

Plaintiff Schmier does not allege any current, personal, concrete injury as a result of the defendants' policies. See Raines v. Byrd, 521 U.S. 811, 819 (1997) ("a plaintiff's complaint must establish that he has a 'personal stake' in the alleged dispute, and that the alleged injury suffered is particularized as to him"). Even alleged constitutional breaches do not support standing if the plaintiff has not been personally affected. See, e.g., Valley Forge, 454 U.S. at 485 ("Although respondents claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III . . . .")(emphasis in original).

To have standing to seek injunctive relief, plaintiff must "allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future." Malowney v. Federal Collection Deposit Group, 193 F.3d 1342, 1346 (11th Cir. 1999) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)), cert. denied, 529 U.S. 1055 (2000)). "A threatened injury must be certainly impending to constitute injury in fact." Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (citations and internal marks omitted). See also Bowen v. First Family Financial Services, Inc., 233 F.3d 1331, 1340 (11th Cir. 2000). Plaintiff Schmier has not alleged that the Eleventh Circuit's rules will cause him–-either as an attorney or as a litigant-- any actual future injury greater than the generalized interest he currently expresses in the publication rules.

B. Plaintiff contends that he should be entitled to amend his complaint to include a factual basis for his standing or that the case should be remanded for an evidentiary hearing on the issue of his standing. Appellant's Opening Brief at 21-23. Plaintiff points out that, under current practice, the pleading requirements are minimal and demand only a short and plain statement of the alleged grounds for jurisdiction. Id. at 21.

While courts now require only notice pleading, the party invoking the court's jurisdiction must still at least allege facts that, if true, would support a finding of standing. See, e.g., Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234, 1267-68 (11th Cir. 2001). Plaintiff's reliance on Bischoff v. Osceola County, 222 F.3d 874 (11th Cir. 2000), is misplaced. There, the district court made a credibility finding on the basis of conflicting affidavits, id. at 876, whereas in this case, the district court took as pled the facts in the complaint. Plaintiff is not entitled to a hearing where his version of the facts is not in dispute. See United States Securities & Exch. Comm'n v. Carillo, 115 F.3d 1540, 1542 (11th Cir. 1997).

In addition to plaintiff's lack of standing, two further reasons support dismissal of the complaint. First, as the magistrate's report reflected, plaintiff failed to provide adequate service of his complaint under Federal Rule of Civil Procedure 4. RE 5: Order to Show Cause, at 2. The fact that plaintiff eventually served the Attorney General and the United States Attorney, as required by Rule 4, does not cure the fault because that service occurred outside the 120-day period prescribed by the rule. Ignorance of the rule, especially in an attorney, does not excuse failure to comply with it. See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988).

Second, there is a serious question as to whether a district court can properly entertain an action seeking an order barring enforcement of rules of its superior court. See, e.g., Panko v. Rodak, 606 F.2d 168, 171 n.6 (7th Cir. 1979)(stating that "[I]t seems axiomatic that a lower court may not order the judges or officers of a higher court to take an action," and noting the "unseemliness of the district judge interfering in the policies and procedures which the Court has adopted to minimize the practical difficulties of dealing with its substantial caseload"), cert. denied, 444 U.S. 1081 (1980).

* * * * * * *

In sum, the district court correctly ruled that plaintiff Schmier lacks Article III standing to sue here. This Court should affirm the district court's judgment on that ground; there is no need to consider any other issue raised here.

II. ELEVENTH CIRCUIT RULES 36-1, 36-2, AND 36-3 ARE CONSISTENT WITH THE JUDICIAL POWER UNDER ARTICLE III OF THE CONSTITUTION.

Plaintiff Schmier contends that Eleventh Circuit Rules 36-1, 36-2, and 36-3, which provide that certain dispositions of this Court will not be published and cannot be cited as binding precedent, are unconstitutional. Principally, he argues that those rules are inconsistent with the judicial power under Article III, that they violate the principle of stare decisis, and that they create a system of selective prospectivity. For his arguments, plaintiff relies primarily on the Eighth Circuit panel opinion in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), which was subsequently vacated as moot by the en banc Eighth Circuit, 235 F.3d 1054.³

The heart of the Anastosoff opinion and plaintiff's argument is the view that the Framers of the Constitution intended, without saying so, that the judicial power in Article III includes a mandatory rule that every disposition of every federal court be treated as binding precedent. Anastasoff and plaintiff's arguments fail, however, because they lack any textual support in the Constitution, misread the historical record, and are inconsistent with the implementation of the judicial power since the Constitution was ratified.

A. There is no Constitutional requirement that all dispositions of the Eleventh Circuit must be published and treated as binding precedent.

The most obvious problem with plaintiffs' argument (and with the vacated Anastasoff opinion on which it heavily relies) is the lack of any support in the actual language of the Constitution. As the Ninth Circuit recently recognized in Hart v. Massanari, __ F.3d __, 2001 WL 1111647 (9th Cir.), nothing in the text of the Constitution or in the historical record relevant to determining the Framers' intent supports the conclusion that the dispositions of the federal courts must be published and treated as binding precedent.

Article III simply vests the "judicial Power" of the United States in the Supreme Court and in "such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1, cl. 1. The judicial power is subject to limitations enumerated elsewhere in the Constitution, such as the trial by jury requirement of the Seventh Amendment, but the phrase as used in Article III is itself more "descriptive than prescriptive." Hart, at * 2. Thus, no language in Article III, or any other part of the Constitution, even remotely suggests that it prohibits the Supreme Court, or the lower courts created by Congress, from establishing practices such as those embodied in Eleventh Circuit Rules 36-1, 36-2, and 36-3.

This lack of any support in the Constitution itself is a serious problem for Schmier's argument because the courts should be hesitant to infer new Constitutional rights where such putative rights lack any textual foundation. See Bowers v. Hardwick, 478 U.S. 186, 194 (1986) ("The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge‑made constitutional law having little or no cognizable roots in the language or design of the Constitution").

Plaintiff attempts to sidestep this flaw by using the reasoning of the Anastasoff panel that the doctrine of stare decisis was well-established when the Framers wrote the Constitution, and that “it was the historic method of judicial decision-making . . . .” 223 F.3d at 900.

The Anastasoff panel’s analysis rested on its conclusions concerning English legal practice regarding the application of case precedent, and its view that the Framers understood this practice as an essential aspect of the judicial function, differentiating it from legislating. Id. at 901. The panel found that the Framers had incorporated the doctrine of stare decisis silently into the Constitution in Article III, Section 1, as a mandate binding the federal judiciary. 223 F.3d at 902.

As the Hart decision demonstrates, the historical record relevant to this issue refutes plaintiff's claim and this notion about the unstated intent of the Framers. The Ninth Circuit's Hart opinion explains that at, and prior to, the time of the creation of the Constitution, the primary sources for the common law were treatises, Hart at * 5, and that those reporters that were available did not include every case, ibid., and frequently omitted decisions the editors considered wrong or repetitive of earlier cases. Id. at *7. In light of this practice, the Framers surely did not assume, without so stating, that the constitutional judicial power necessarily encompassed a re-quirement that every disposition be published and constitute binding precedent.

Moreover, it must be remembered that the English legal system created a mechanism – the equity courts – precisely to avoid the effect of precedent. (Section 2 of Article III of the Constitution expressly provides that the "judicial Power" of the new Federal Government extends to all cases "in Law and Equity . . . ."). In the English courts of equity, it was expected that judges would eschew common law precedent if it would lead to a result deemed unfair in a specific case. See W. Blackstone, Commentaries on the Laws of England (American ed.1771; reprinted in 1967), at Book 1, pp. 91-92; Book 3, pp. 50-55, 432-33. It is certainly true that, as Blackstone described, the English courts of equity developed their own precedent, which they followed. See id. at Book 3, pp. 432-33. Nevertheless, Blackstone reveals that English law was not so devoted to the doctrine of binding precedent that we should assume that the Framers incorporated it into Article III without saying so.

Although the Anastasoff panel nevertheless attributed to the Framers a firm commitment to incorporate the doctrine of precedent into Article III, the evidence cited by the Eighth Circuit does not support that conclusion. In Essay No. 78 of The Federalist Papers, Alexander Hamilton addressed the issue of life-tenure for federal judges. Hamilton simply noted that it would be important to have judges who are learned in the law because the number of precedents will grow, and "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Hamilton was not discussing whether Article III required that all federal decisions have precedential impact; his statement cannot be taken out of context to create a new constitutional principle that has no support in the text of the Constitution.

We are aware of no other evidence, and plaintiff has provided none, that the Framers or those in the state ratifying conventions thought they were placing in Article III an immutable rule that all federal court decisions must bear precedential weight. See J. Harrison, "The Power of Congress Over the Rules of Precedent," 50 Duke L.J. 503, 523 (2000) ("It is highly unlikely that when the Constitution was adopted Americans believed that the principle of stare decisis was hard-wired into the concept of judicial power. There were norms of precedent, but they were principles of general jurisprudence, no more fixed by the Constitution than is the law of admiralty"). See also Note, 114 Harvard L. Rev. 940, 944 (2001) (commenting on lack of historical materials cited to support a notion that the Article III judicial power necessarily includes precedential authority for all federal court decisions).

Further, early Supreme Court practice dooms plaintiff's unsupported theory about what the Framers meant Article III to include. There was no official reporter of Supreme Court decisions until 1816, and before 1834 there was no requirement that opinions even be filed. See D. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888 (1985), at 9; see also Hart at *5. As Professor Currie explains, "a later reporter of decisions who attempted to make a complete collection of early opinions concluded that before 1800 the written opinion was the exception, not the rule. What got reported in the earliest days was what Alexander Dallas for his own purposes could gather and elected to divulge." Ibid. Under such circumstances, the early Supreme Court Justices obviously could not have believed that their unreported and unexplained decisions were nevertheless binding precedent as a constitutional requirement under Article III.

Schmier's notion that the selective publication of some dispositions as precedent runs afoul of Article III is also fundamentally flawed as a matter of legal analysis. Contrary to plaintiff's view, court rules such as Circuit Rules 36-1, 36-2, and 36-3 are fully consistent with the courts’ general adherence to precedent because precedent is limited to those decisions that the respective courts deem warrant such effect. See Jones v. Superintendent, Virginia State Farm, 465 F.2d 1091, 1094 (4th Cir. 1972)("We believe that our screening procedures and disposition [of habeas cases] by unreported memorandum decisions accords with due process and our duty as Article 3 judges, but we confess its imperfection."), cert. denied, 410 U.S. 944 (1973).

Nor are such circuit rules in any way inconsistent with the separation of powers. A decision not to publish as precedent certain court dispositions is not an expansion of judicial power into the legislative sphere, for the court is by no means engaging in a legislative activity.

A court’s exercise of judgment and discretion in choosing certain decisions for publication as precedent, or instructing litigants as to what dispositions can be cited to the court in briefs, cannot be equated with Congress’ Article I powers. Courts constitutionally may exercise functions ancillary to their strictly judicial actions, such as rulemaking, which are not "legislative." See Mistretta v. United States, 488 U.S. 361, 389 (1989); In re Complaints of Judicial Misconduct, 9 F.3d 1562, 1567 (U.S. Judicial Conference Committee to Review Circuit Council Conduct & Disability Orders 1993).

Moreover, plaintiff's theory that precedent must be applied uniformly is inconsistent with the structure of the federal judicial system that Congress itself has established. Our federal circuit system, for the most part, is divided geographically, 28 U.S.C. § 41, with no statutory requirement that the decisions of one circuit must bind another circuit. As a result, individuals and entities can be treated, and, in many instances, are treated, differently by the federal courts.

Such regional variations in the application of law also appear to be inconsistent with the plaintiff's argument, for if all decisions of a circuit should be precedents, then that principle would not be restricted by a circuit’s geographic limits. See Hart at * 9 (discussing Anastasoff's conflict with the circuit system and explaining the benefits to the development of law garnered from having a system of independent and co-equal circuit courts). Congress, of course, could create a super-appellate court below the Supreme Court with responsibility to resolve all conflicts among the circuits, but it has not done so to date.⁴ No serious constitutional argument could be made that such a unitary system is mandated.

Moreover, within the federal court system, there are other variations from the kind of uniformity in precedent that is implicitly required under plaintiff's theory. The Supreme Court itself has established at least two different forms of precedent — it has held that the rulings in cases given summary treatment are of lesser precedential value than those decided after plenary proceedings. See Stern, Gressman, Shapiro, & Geller, Supreme Court Practice (7th ed. 1993), at 215-17 (“Supreme Court Practice”). Thus, the Court has, in a manner comparable to Circuit Rules 36-1, 36-2, and 36-3, provided that a specified class of its decisions will not have full precedential weight. In addition, the Supreme Court has made clear that its rulings denying certiorari in cases are not to be given any weight at all. See Supreme Court Practice, at 239-43.

The lower federal courts have also long applied a principle that rulings of a district judge are not binding precedent on any other district judge, or even on that same judge. See 18 Moore’s Federal Practice (3d ed.), ¶134.02[1][d]; Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977). This rule governs even when the prior decision is by a three-judge court. Farley v. Farley, 481 F.2d 1009, 1012 (3d Cir. 1973). Under this rule, two litigants within the same federal court in the same state can be treated quite differently, and this situation would be changed only if both of them decide to appeal contemporaneously. Under the plaintiff's theory, this practice would be unconstitutional because litigants must be governed by the same legal ruling in the same court.

B. Plaintiff's other constitutional arguments are meritless.

1. Plaintiff incorrectly relies on the Supreme Court’s decision in James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991). See Appellant's Opening Brief at 10, 14. That ruling simply states the uncontroversial proposition that, when the Supreme Court has applied a new rule of law to litigants in one case, “it must do so with respect to all others not barred by procedural requirements or res judicata.” Id. at 544. Thus, the Beam decision was strictly concerned with the retroactive effect of new rules of law. See id. at 532. Beam and its concerns about retroactivity are inapposite to non-precedential dispositions that do not announce a new rule of law. Beam, 501 U.S. at 534.

2. As discussed above, plaintiff's claim that Circuit Rules 36-1, 36-2, and 36-3 violate the principle of stare decisis is incorrect. Plaintiff fails to demonstrate that the principle is embodied in Article III, or that any litigant has a right to enforce the application of the principle to his or her specific case. Moreover, the Supreme Court has observed that the principle of stare decisis is not an absolute one: "[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience." Helvering v. Hollock, 309 U.S. 106, 119 (1940); see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 63 (1996).

3. In his statement of issues, plaintiff further suggests that the Eleventh Circuit Rules violate the equal protection and due process guarantees of the Constitution, but his brief contains no discussion on these points. Plaintiff does not appear to have adequately preserved these arguments. See Fed.R.App.P.28(a)(5) & (a)(9); United States v. Gonzales, 90 F.3d 1363, 1369-70 (8th Cir. 1996) (failure to assign error or discuss contention in appellate brief is deemed abandonment of issue). Should the Court choose to reach these arguments, however, it will find that they too are completely unmeritorious.

Plaintiff's assertion that the Eleventh Circuit rules violate equal protection principles must be rejected. Absent some reason for heightened scrutiny, the Equal Protection Clause requires only that a challenged classification "rationally further a legitimate state interest." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).⁵ Such classifications are presumptively valid under the Equal Protection Clause. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985).

Under the rational basis test, the burden is on the party attacking the rule "to negative every conceivable basis which might support it," and "courts are compelled under rational-basis review to accept the legislature’s generalizations even when there is an imperfect fit between means and ends." Heller v. Doe, 509 U.S. 312, 320-21 (1993). In this case, the Eleventh Circuit could reasonably conclude that Circuit Rules 36-1, 36-2, and 36-3 are rationally related to the Court's interest in effective judicial management, as elucidated in Internal Operating Procedure 36-3. See also Hart at * 13-16 (discussing advantages to judicial system and litigants of unpublished dispositions); George M. Weaver, "The Precedential Value of Unpublished Judicial Opinions," 39 Mercer L.Rev. 477, 485 (1988). When courts consider equal protection challenges to legislation, they recognize that a legislature should be given latitude in its policy-making decisions. See Plyler v. Doe, 457 U.S. 202, 216 (1982). The same principle should apply to an equal protection challenge to a judicial rule promulgated for effective court administration.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully submitted,

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

THOMAS F. KIRWIN

United States Attorney

DOUGLAS N. LETTER

(202) 514-3602

KATHLEEN A. KANE

(202) 514-3972

Attorneys, Appellate Staff

Civil Division, Room 9605

Department of Justice

601 D Street, N.W.

Washington, D.C. 20530-0001

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(c)

OF THE FEDERAL RULES OF APPELLATE PROCEDURE

I hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C) and Local Rule 28-1(m), that the foregoing brief contains 5569 words, according to the count of Corel WordPerfect 9.

_______________________

Kathleen A. Kane

Attorney

CERTIFICATE OF SERVICE

I hereby certify that on October 23, 2001, I am causing the foregoing "BRIEF FOR THE APPELLEES" to be served upon the Court and upon the plaintiff/appellant by federal express overnight mail:

Michael Schmier

1475 Powell Street, Suite 201

Emeryville, CA 94608

__________________

KATHLEEN A. KANE

Attorney

¹ Section 2072 provides: "The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals." 28 U.S.C. § 2072(a). Rules that the Supreme Court prescribes pursuant to this authority "shall not abridge, enlarge or modify any substantive right." Id. § 2072(b).

² By statute, each federal judicial circuit has a Judicial Council that consists of the "the chief judge of the circuit . . . and an equal number of circuit judges and district judges of the circuit . . . ." 28 U.S.C. § 332(a)(1). The Councils are charged with making "all necessary and appropriate orders for the effective and expeditious administration of justice within its circuit." Id. § 332(d)(1).

³After Anastasoff was vacated, the Eighth Circuit has, like this Court, continued to enforce its rule against precedential force for designated opinions. See Andrews v. Neer, 253 F.3d 1052, 1057 n.3 (8th Cir. 2001) ("Rule 28A(i) continues to govern in this Circuit, and we urge the parties appearing before this Court to comply with its terms").

⁴ See Commission on Revision of the Federal Court Appellate System, "Structural and Internal Procedures: Recommendations for Change." (June, 1975), at 208-38 (recommending a National Court of Appeals).

⁵ Even if plaintiff were to argue that the selective publication of Eleventh Circuit decisions impairs his practice of law, such allegations also would not state a claim. The right to practice law is not a fundamental right for the purposes of due process or equal protection analysis. See Leis v. Flynt, 439 U.S. 438, 442 (1979); Giannini v. Real, 911 F.2d 354, 358 (9th Cir.), cert. denied, 498 U.S. 1012 (1990).