USCA Docket No. 01-14124-EE

Dist.Ct. Docket No. 00-00457 CV-4-RH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

______________________________________________________

MICHAEL SCHMIER,

Appellant,

v.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT and JUDICIAL COUNCIL OF THE ELEVENTH CIRCUIT,

Appellees.

_______________________________________________________

APPELLANT'S REPLY BRIEF

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

HONORABLE ROBERT L. HINKLE, PRESIDING

Michael Schmier

1475 Powell Street, Suite 201

Emeryville, CA 94608

(510) 652-5450 (telephone)

(510) 652-0929 (facsimile)

Pro Se

TABLE OF CONTENTS

Page

I. INTRODUCTION 1

II. LEGAL ARGUMENT 5

A. Appellant Has Standing To Bring This Action

Even Though His Injury Is Not Unique 5

B. The Challenged Circuit Rules Are Unconstitutional 8

1. The Eleventh Circuit Should Adopt The Eighth

Circuit Holding In Anastasoff v. United States

And Reject The Ninth Circuit Holding In

Hart v. Massanari 9

2. The Nonpublication/No-Citation Rules Of The

Eleventh Circuit Violate Constitutional

Guarantees Of Equal Protection And Due

Process 15

3. The Action Should Not Be Dismissed With

Prejudice For Failure To Timely Serve 17

III. CONCLUSION 18

CERTIFICATE OF COMPLIANCE 19

CERTIFICATE OF SERVICE 20

TABLE OF AUTHORITIES

Page

CASE AUTHORITIES

Anastasoff v. United States, 223 F.3d 989 (8th Cir.

2000), vacated, 235 F.3d 1054 (en banc) passim

Branson School District RE-82 v. Romer, 958 F. Supp.

1501 (D.Colo. 1997) 5

Community Nutrition Institute v. Block, 698 F.2d 1239

(D.C. Cir. 1983), cert. granted 464 U.S. 991,

judgment reversed 467 U.S. 340 6

Friends of the Boundary Waters Wilderness v. Thomas,

53 F.3d 881 (8th Cir.1995) 5

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) passim

Helvering v. Hollock, 309 U.S. 106 (1940) 12

James B. Beam Distilling Co., 501 U.S. 529 (1991) passim

Japan Whaling Ass'n v. American Cetacean Soc.,

478 U.S. 221 (1986) 5

Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996) 5

Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) 6

Nordlinger v. Hahn, 505 U.S. 1 (1992) 16

Planned Parenthood v. Casey, 505 U.S. 833 (1992) 15

Sierra Club v. Morton, 405 U.S. 727 (1972) 5

Sierra Club v. Robertson, 28 F.3d 753 (8th Cir.1994) 5

United States v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669 (1973) 6, 7

MISCELLANEOUS AUTHORITIES

Wright, Miller, Cooper, 13 Federal Practice and

Procedure, Juris.2d § 3531.10 6

I.

INTRODUCTION

Appellant challenges the constitutionality of Circuit Rules of the Eleventh Circuit which operate to avoid the precedential effect of prior judicial opinions -- no matter how relevant -- unless those decisions are designated as published "opinions." Appellees argue that the complaint herein was properly dismissed sua sponte by the district court because Appellant lacks standing and because the challenged rules are constitutional. Appellees are incorrect.

First, contrary to Appellees' assertion, Appellant does not argue that he meets constitutional standing requirements as a mere member of the general public, even though the general public is indeed injured by the challenged rules. Rather, as a practicing attorney, Appellant suffered -- and continues to suffer -- an injury that is concrete and particularized when contrasted with that of the general public. Appellant's injury is not diminished merely because it is widely shared with other practicing attorneys. Appellees go too far in asserting that a litigant is denied standing because his injury is not unique. Appellant alleged an invasion of his legally protected interests that is concrete and particularized, and that allegation was sufficient to withstand the challenge to Appellant's standing on a mere motion to dismiss. Moreover, the action should not have been dismissed sua sponte by the District Court without permitting Appellant an opportunity to amend the complaint and without holding an evidentiary hearing.
Second, contrary to Appellees' contention, the nonpublication rules of the Eleventh Circuit indeed violate the Constitution by exceeding the judicial power authorized by Article III. This court should adopt the holding of the Eighth Circuit in Anastasoff v. United States, 223 F.3d 989 (8th Cir. 2000), vacated, 235 F.3d 1054 (en banc), rather than the recent Ninth Circuit opinion in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), issued after Appellant's Opening Brief was filed herein. As the discussion in Hart makes clear, nonpublication rules operate to permit judges -- outside the specific adjudication of cases -- to decide which opinions shall become law and which shall not, in violation of Article III judicial power.

Additionally, Appellees incorrectly contend that Appellant has waived any constitutional arguments based upon equal protection or due process. Because these issues were not implicated by the order appealed, Appellant did not set forth such arguments separately. Nonetheless, Appellant addressed them as part of the Article III discussion. Although Appellees incorrectly contend that the nonpublication rules should be subject to the rational basis test in equal protection analysis, this Court cannot determine on the record -- just as the district court could not determine on the face of the pleading -- that the challenged rules meet any applicable level of equal protection or due process scrutiny.

Appellees also incorrectly contend that the sua sponte dismissal should be affirmed regardless of the standing issue because Appellant failed to properly serve the complaint within the requirements of Rule 4 of the Federal Rules of Civil Procedure. Although the district court discussed the failure to properly serve in the order of dismissal, the action was not dismissed for this reason. Rather, the district court dismissed the action with prejudice for lack of standing. Appellant corrected the defective service immediately upon notification by the district court but admits here -- as he did below -- that the complaint was still not timely served. If this Court finds that dismissal was proper for failure to timely serve, then the order of dismissal with prejudice should be reversed, so an order of dismissal without prejudice for failure to timely serve may be entered in its place.

Appellees err in repeatedly mischaracterizing Appellant as advocating that all dispositions of the Court be accepted as binding precedent because Appellant does not suggest that all opinions be binding precedent. Appellant merely argues that the Court may not constitutionally ignore relevant prior dispositions, whether published or unpublished. Appellant recognizes the right and duty of the Court to follow, distinguish, or overrule any prior opinion provided it can articulate justification for its action, is willing to abide by the same for the foreseeable future, and acts within the determination of a case.

Truth, and the integrity of the court, will not allow the denial of the historical existence of opinions of the court simply because the court has deemed them not worthy of publication. Rather, those prior determinations are precedent as a matter of historical fact. Real litigants, possessed of real human emotions and real concerns, came before the Court for resolution of their grievances. It is offensive to the basic understanding of law and justice to say to a losing litigant that the law used to resolve his case is not good enough or drafted carefully enough to be used again in resolution of similar or even identical disputes, nor will it serve the peaceful acceptance of dispute resolution if the Court itself withholds its resolution from careful consideration of the general public. Simply put, nonpublication rules defeat the systemic warranty that all cases are decided according to law because all decisions become a part of the law. The defeat of this systemic warranty renders the law of this jurisdiction unpredictable, unreliable, or untrustworthy. Only when the chaos of an illogical or unfair decision is released upon the pubic can its faults make themselves known so as to be remedied by a court or legislative body.

Because Appellant's professional responsibility is to divine the law for others, and also to protect and improve the administration of justice, he has standing to complain of court practices that lift the anchor of the law from the seabed of the past and destroy the connection of the law to its future.

II.

LEGAL ARGUMENT

A. Appellant Has Standing To Bring This Action Even Though

His Injury Is Not Unique.

The Order of Dismissal appealed herein is in error in finding that a litigant cannot have standing if that litigant's injuries are widely shared. Contrary to Appellees' assertion, courts have found plaintiffs to meet constitutional standing requirements even though their injuries are shared by the general public. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (injury of aesthetic interests such as observation and study of endangered animals), Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 231 (1986)(plaintiff's interests in watching whales adversely affected by harvesting even though harm shared by public), see also Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996), Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 886 (8th Cir.1995), Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir.1994), Branson School District RE-82 v. Romer, 958 F. Supp. 1501 (D.Colo. 1997).

These authorities -- relied upon by Appellant and wholly ignored by Appellees -- each stand for the proposition that a plaintiff may have standing even though his injury is widely shared. Appellees err in mistakenly concluding that because the Constitution precludes "citizen standing," it must also preclude an action involving wide-spread injuries.

To the contrary, it has been repeatedly held that standing cannot be denied merely because an injury is shared by the general public. See Community Nutrition Institute v. Block, 698 F.2d 1239, 1261 (D.C. Cir. 1983), cert. granted 464 U.S. 991, judgment reversed 467 U.S. 340 ("the mere fact that injury may be shared by many consumers does not require us to dismiss this complaint on that ground"), Newman v. Graddick, 696 F.2d 796, 799-800 (11th Cir. 1983) (newspaper publisher suffered "distinct and palpable" injury in denial of access even though access right is shared by the general public). To deny a litigant standing merely because his injury is shared "would mean that the most injurious and widespread Government actions could be questioned by nobody." Wright, Miller, Cooper, 13 Federal Practice and Procedure, Juris.2d § 3531.10 (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687-88 (1973)).

Appellant is an attorney at law who regularly practices employment law in the federal courts. As such, among other injuries to Appellant, the Eleventh Circuit rules operate to deny Appellant the concrete body of law upon which to base the opinions he is asked to give in the course of his trade, substituting some lesser, equivocal product unauthorized by the Constitution and the rule of law.

Appellant expressly alleges a clear, present, and substantial right to the performance of Appellees' duties. Appellant further alleges that his constitutional rights guaranteed by the Fifth Amendment are violated by the challenged rules. In short, Appellant has expressly alleged concrete and actual invasion of legally protected interests. Although Appellees may ultimately contest the merits of these allegations, the allegations themselves are sufficient.

As a practicing attorney in the area of federal labor and employment law, Appellant's injury from these rules is certainly more concrete and particularized than the general public because it is his professional obligation to advise his clients of the law that will be applied in any particular instance and to assist those clients in planning for its consequences. Under operation of the rules at issue, Appellant is unable to accurately advise clients of the law or even know what law will be applied because of the intercircuit and intracircuit conflicts which arise or may arise through operation of the rules. To deny Appellant's standing here would be to deny a remedy to a plaintiff who is in fact injured merely because many others are also injured, as cautioned against in Students Challenging Regulatory Agency Procedures, 412 U.S. at 687-88.

Appellant has stated sufficient allegations in support of standing to allow this case to proceed beyond a motion to dismiss. Dismissal for lack of standing is not warranted because Appellant has expressly alleged invasion of legally protected interests that is actual and imminent as well as concrete. Appellant should be entitled to proceed with investigation and discovery and respond to a motion for summary judgment challenging his standing with appropriate affidavits and evidence at that time.

Finally, if the complaint alleges insufficient facts in support of standing, Appellant requested -- and was denied -- leave of court to amend the complaint to state additional facts. As set forth in the Opening Brief, the district court erred in dismissing the action for lack of standing without first holding an evidentiary hearing on the issue or in granting leave to amend to state additional facts.

B. The Challenged Circuit Rules Are Unconstitutional.

Appellees argue that the nonpublication rules of the Eleventh Circuit do not violate Article III judicial power. Appellees rely on the recent Ninth Circuit opinion in Hart v. Massanari, 266 F.3d 1155, and argue that because the Constitution is silent on the issue of nonpublication, it certainly cannot support the holding of the Eighth Circuit in Anastasoff v. United States, 223 F.3d 989.

Appellees are incorrect, and a reading of the Ninth Circuit opinion's stated rationale demonstrates the superior reasoning of the Eighth Circuit, whose rules are much more similar to the Eleventh Circuit than those of the Ninth.

Although they were not implicated in the district court order of dismissal, Appellant's other constitutional arguments are not meritless and cannot be determined on a motion to dismiss, much less sua sponte before Defendants even appear in the district court, without evidence establishing to an independent finder of fact the purported interests advanced by the rules to be weighed against the constitutionally protected interests held by Appellant.

1. The Eleventh Circuit Should Adopt The Eighth Circuit

Holding In Anastasoff v. United States And Reject

The Ninth Circuit Holding In Hart v. Massanari.

This appeal has put the opposite holdings of two different circuits before the Eleventh Circuit. The Eighth Circuit held in Anastasoff v. United States, 223 F.3d 989, that nonpublication rules there violate the judicial power authorized by Article III of the Constitution. The Ninth Circuit held in Hart v. Massanari, 266 F.3d 1155, that the nonpublication rules there do not violate the judicial power authorized by Article III of the Constitution. The superior analysis -- which interpreted rules more similar to those of the Eleventh Circuit -- was that of the Eighth Circuit, and this Court should adopt of the holding of Anastasoff.

As set forth in the Opening Brief, a panel of the Eighth Circuit has expressly found rules of the Eighth Circuit which distinguished between precedential dispositions and nonprecedential dispositions to violate Article III of the United States Constitution. Anastasoff, 223 F.3d at 899-900.

We hold that the portion of Rule 28A(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III because it purports to confer on the federal courts a power that goes beyond the "judicial." . . . . [¶] . . . These principles, which form the doctrine of precedent, were well established and well regarded at the time this 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. (fn omitted.) 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.

Id.

The Ninth Circuit disagreed with the Anastasoff holding, and held in Hart v. Massanari, 266 F.3d 1155, issued on September 24, 2001, after Appellant's Opening Brief was filed, that the Ninth Circuit nonpublication rules do not violate Article III. Although the Ninth Circuit agreed with the Anastasoff statement that the concept of precedent was well established at the time the Constitution was written, the Ninth Circuit panel disagreed that precedent was "known and applied in the strict sense in which we apply binding authority today." Id. at 1174.

Of course, the very rationale of the Ninth Circuit is premised upon rules of the Ninth Circuit which do not exist in either the Eighth Circuit or the Eleventh Circuit. The entire opinion in Hart is premised on the concept of "binding precedent." The Ninth Circuit's rationale is that since certain written opinions are determined at issuance as "binding precedent" and others are not, the nonprecedential opinions should not be brought to the court's attention in resolution of later disputes. This theory is advanced in circuits like the Ninth that couple their nonpublication rules with no-citations rules which prohibit litigants from citing or discussing unpublished dispositions, no matter how relevant. The entire premise is undermined in circuits, like the Eighth and Eleventh, which do not have no-citation rules and presumably permit unpublished dispositions to be cited and discussed. While Appellant does not restrict his disagreement with the Hart holding to this distinction, and believes that no-citation rules clearly violate First Amendment rights of speech and petition, the distinction is nonetheless clear.

Appellant specifically challenges the very notion of "binding precedent," as applied by the Ninth Circuit, which has been asserted in this appeal at this late stage by Appellees' Brief and by the holding in Hart. Guided by a concept of binding precedent, as discussed at length in Hart, judges essentially act as legislators in determining -- outside their adjudication of specific cases -- which opinions will become the law of the circuit and which opinions will not. The application of binding precedent itself as discussed in Hart makes clear the superiority of the Article III analysis of the Eighth Circuit in Anastasoff. The Eighth Circuit opinion was premised on the belief that judicial power is restricted to adjudication of specific cases, and that the historical resolution of those specific disputes forms the core of precedent. This precedent may not be ignored or manipulated by judges outside of their case specific adjudication. However, the Ninth Circuit opinion makes clear that judges certainly do manipulate precedent by deciding, outside their judicial capacity, which opinions are good enough, or important enough, to be considered in the future and which are not good enough to stand as law for the future.

Rather than accept the Ninth Circuit concept of binding precedent, which Appellees repeatedly and mistakenly assert that Appellant espouses, Appellant argues only that the court should be constrained by the broader precedential doctrine of stare decisis, which requires only that relevant prior decisions be acknowledged and reconciled. As Appellees themselves recognize, the concept of stare decisis is more fluid than that of binding precedent. "[S]tare decisis is a principal 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).

In their opposition brief, Appellees set forth considerable argument against the holding and rationale of the original Anastasoff opinion. Curiously, however, Appellees -- much like the Ninth Circuit panel in Hart -- do not argue against the direct case authority which supports the Eighth Circuit panel decision, i.e., James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991), which proscribes "selective prospectivity," but instead argue at length against the Eighth Circuit's discussion of the constitutional Framer's intent as evidenced by contemporary writings and subsequent historical study of the Framers. The Eighth Circuit panel set forth a well-developed and lengthy discussion of the Framers' intent, which is not addressed here because the more relevant analysis is that set forth in James B. Beam Distilling Co.

In James B. Beam Distilling Co., the Supreme Court recognized that new rules of law may or may not be given retroactive effect, but once a Court has applied the law to one litigant, it must, as a matter of due process and equal protection, apply that rule to all litigants. James B. Beam Distilling Co., 501 U.S. at 535-36.

"[S]elective prospectivity also breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally." [Citation omitted.] "We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a 'new' rule of constitutional law."

Id. at 537-38 (quoting Desist v. United States, 394 U.S. 244, 258-59 (1969)).

The Court stressed that such a system of "selective prospectivity" undermines the system of stare decisis which is the hallmark of our system of justice. Id. at 540, see also id. at 548 (Blackmun, J., concurring).

Appellees simply dismiss the James B. Beam Distilling Co., and its application here, arguing that the decision "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.'" Appellees' Brief, p. 21 (citation omitted).

Indeed, that is precisely the point. The prohibition against selective prospectivity is an "uncontroversial proposition" of constitutional law, yet the Eleventh Circuit nonpublication rules allow selective prospectivity not only to exist but to flourish in the Eleventh Circuit. The ability of the Eleventh Circuit to pick and choose which of its opinions will apply to future litigants -- and which will not --unquestionably creates a system of selective prospectivity. In rejecting the Eighth Circuit rules for this very reason, Judge Arnold, author of the panel decision in Anastasoff recognized, "[nonpublication rules] 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 they will not." Anastasoff, 223 F.3d at 903-04.

The Eleventh Circuit nonpublication rules violate Article III by conferring upon the Eleventh Circuit a power that exceeds the "judicial" power delegated by the Constitution by creating an entrenched system of selective prospectivity. That proposition, Appellees admit, is "uncontroversial," and it confers upon Appellant here a right to relief which is clear and certain.

2. The Nonpublication/No-Citation Rules Of The Eleventh

Circuit Violate Constitutional Guarantees Of

Equal Protection And Due Process.

Equal protection and due process rest on the doctrines of precedent and stare decisis because they combine to insure that all citizens will be subject to the same laws. See James B. Beam Distilling Co., 501 U.S. at 535-38, Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992). Appellees improperly attempt to reject out of hand Appellant's argument by shifting the suggested fundamental right from a right to be subject to the same laws to the ambiguous "right to published dispositions." (Appellees' Brief, p. 22.)

Appellees are incorrect that Appellant failed to discuss equal protection and due process in the Opening Brief; their error lies in their failure to recognize that James B. Beam is premised -- and the prohibition on selective prospectivity is founded -- upon the constitutional guarantees of equal protection and due process.

Underlying Appellees' argument is the unsubstantiated assumption that no new rules of law are applied in unpublished opinions of the Eleventh Circuit. To the contrary, as set forth in Appellant's Opening Brief, and ignored by Appellees, unpublished dispositions routinely create new rules or refuse to apply existing rules, as recognized in many independent studies by legal researches and commentators.

Appellees argue in opposition that the system of classification challenged in the instant action does not violate equal protection so long as it "rationally furthers a legitimate state interest," under the authority of Nordlinger v. Hahn, 505 U.S. 1, 10 (1992), and that such classifications are presumptively valid. First, Appellees apply an incorrect standard; the challenged classification "jeopardizes exercise of a fundamental right," id., and the Supreme Court has expressly recognized that selective prospectivity violates fundamental rights. See James B. Beam Distilling Co., 501 U.S. at 537-38, 548.

Although the appropriate test to apply given the fundamental rights at issue is not the rational basis test, as suggested by Appellees, Appellant contends that the application of nonpublication/no-citation rules certainly supports the proposition that the rules are very much irrational. Even if Appellees are correct that the rational basis test is applicable, they themselves admit that the "presumption" of validity in such a test may be rebutted. The validity cannot be determined on a motion to dismiss for failure to state a claim. It certainly cannot be determined by the district court sua sponte before Defendants have even appeared in the action.

The nonpublication rules create a system of selective prospectivity which imposes different application of law on cases which are factually indistinguishable. The rules violate the constitutional guarantees of equal protection and due process.

3. The Action Should Not Be Dismissed With Prejudice

For Failure To Timely Serve.

Finally, Appellees suggest that the dismissal was proper in any event because Appellant failed to timely serve within the requirements of Rule 4 of the Federal Rules of Civil Procedure. Although Appellant corrected the defective service immediately upon notification by the district court -- but after the 120 days has passed -- Appellant does not dispute the failure to timely serve. However, as set forth in the Opening Brief, the district court judge discussed the failure to timely serve at length in the Order of Dismissal but did not dismiss the action for failure to timely serve. Rather, the action was dismissed with prejudice for lack of standing. If this Court finds that dismissal was proper for failure to timely serve, then the Order of Dismissal should still be reversed so that the dismissal with prejudice can be replaced with a dismissal without prejudice.

III. CONCLUSION

Appellant asks the Court to restore the doctrine of stare decisis to its rightful operation within this judiciary. Under its guidance, the Court remains intellectually free at all times to opine that precedents be followed, distinguished, or overruled for reasons articulated by its judges and others. Appellant merely asserts is that historical precedents may not be defined out of existence or ignored. By adopting Appellant's position, the opinions of the judiciary will again create a great body of uncensored discourse that sets out the law, its requirements, and its prohibitions so that the public can know it and so design, construct, and engineer its affairs and actions in a manner which follows the law and avoids transgressing it. Like the scientific method it incorporates, it assists communal learning, and facilitates the development of all that is beneficial to civilization.

Appellant respectfully requests that the judgment of dismissal and the order of the district court granting defendants' motion to dismiss be reversed and that the matter be remanded to the district court for further action.

Respectfully submitted,

Date: November 9, 2001 By:____________________________

MICHAEL SCHMIER

Appellant, Pro Se