Court Rules Unpublished Decisions

Have Precedential Effect

Eighth Circuit declares its local rule unconstitutional

By Thomas E. Zehnle

Litigation News Associate Editor

The Eighth Circuit in August declared unconstitutional its local rule providing that unpublished opinions do not have precedential effect. Some Section of Litigation leaders believe that this seemingly inconsequential decision relating to an innocuous rule will have important national ramifications if others follow its lead. Anastasoff v. United States.

"Most appellate courts make the same distinction between published and unpublished opinions," explains Walter H. Sargent, Colorado Springs, CO, Co-Chair of the Section's Appellate Committee. "They have rules similar to that in the Eighth Circuit, and, at the very least, this decision will give attorneys in those jurisdictions a basis to attack the local rules."

Sargent identifies two main issues in giving unpublished opinions precedential effect. First, the decisions are not widely available. "Other courts may not have their unpublished opinions on line, like the Eighth circuit," he points out. "There is a real concern that small firms and solo practitioners could be blown out of the water because they do not have the financial resources that their opponents have to find these decisions."

Others note that the problem may be more than merely financial. An attorney has a professional obligation to make known to the court any controlling authorities, explains Jerome J. Metz, Jr., Cincinnati, a Section member. "Lawyers may have an ethical duty now to search a court's unpublished decisions or electronic database," he says.

The second concern is the overall quality of unpublished decisions and their potential effect on the state of the law. "Unpublished opinions are generally written less carefully than those which are published," Sargent says. "The review process for these decisions is simply not as attentive." Because the recitations of fact and the legal analyses in unpublished opinions are not as thorough as they should be, Sargent worries that giving these cases precedential value ultimately may cause problems. Metz agrees: "In the real world, easy [unpublished] cases often make bad law and, by and large, these are easy cases."

"The real risk with this decision is that the law may become prematurely fixed without the most capable and complete arguments being presented and heard by the counts," argues Metz. In the Eighth Circuit, it increases the possibility that earlier unpublished panel decisions will be binding on later panels "because en banc reviews just will not happen that often," he says.

Metz says the Anastasoff case itself illustrates his point. In Anastasoff, a taxpayer sought a refund for overpaying her federal income taxes. Although she mailed her refund claim within the limitations period, it arrived one day late at the Internal Revenue Service. The district court held that it was untimely. The Eighth Circuit affirmed, noting that it had rejected, in an earlier unpublished decision, precisely the same legal argument by another taxpayer. Metz believes that Anastasoff would have been decided differently had the panel not been bound by the previous unpublished decision.

There was little discussion in Anastasoff about the substantive, technical Internal Revenue Service regulations in dispute. Rather, Circuit Judge Richard S. Arnold (once on the short list for a Supreme Court appointment, according to Sargent) spent most of the opinion discussing the doctrine of precedent and showing that it was a well established judicial principle at the time the Constitution was drafted. In his view, the Eighth Circuit's local rule allowed the court to determine impermissibly "which judicial decisions will bind us and which will not" and thereby violated Article III of the Constitution "because it purports to confer on the federal courts a power that goes beyond the 'judicial.'"

Although Metz generally agrees that there needs to be stability in the law, both he and Sargent believe that there may be unintended and unwanted consequences if the appellate panel's decision finds widespread acceptance. "For one thing, it my take longer to issue opinions" because the courts might attempt to make their unpublished decisions more polished, explains Sargent.

On the other hand, "Judges will not have the time to spend on unpublished opinions because their caseloads keep going up," Metz says. Indeed, referring to figures from the Administrative Office of the U.S. Courts, the Legal Times reports that 78 percent of case dispositions by federal appeals courts last year were by unpublished opinions. To avoid the potentially binding effect of their unpublished decisions, Sargent says, "Judges might choose to decide cases in an even more summary fashion, with a simple 'affirmed,' for example, and no one will be able cite it." (See Critics Assail One-Word Opinions, Litigation News 25(2):9 (Jan. 2000).) Under such circumstances, Metz questions how any one could know whether the appellate court was affirming the district court's reasoning or whether it found another unidentified basis to affirm.

Judge Arnold's response to these arguments "is to create enough judgeships to handle the volume." This answer is unrealistic according to Metz and Sargent. "He doesn't really acknowledge the costs involved in hiring more judges," says Sargent. "It is an ideal that cannot be met," Metz states bluntly.

Sargent predicts, "If Judge Arnold's view does carry the day, it will likely be dealt with by the Supreme Court, because this issue divides a lot of appellate judges."


Anastasoff v. United States, No. 1182813, 2000 WL (8th Cir. Aug. 22, 2000)