No. 01-16105

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________________

MICHAEL SCHMIER

Plaintiff-Appellant,

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

and JUDICIAL COUNCIL OF THE NINTH CIRCUIT

Defendants-Appellees.

_______________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE APPELLEES

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

DAVID W. SHAPIRO

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

TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION................................... 1

STATEMENT OF THE ISSUES..................................... 2

STATEMENT OF THE CASE....................................... 2

STATEMENT OF FACTS.......................................... 3

A. Relevant rules..................................... 3

B. Facts and proceedings below........................ 6

C. Standard of review................................. 8

SUMMARY OF ARGUMENT......................................... 8

ARGUMENT.................................................... 9

I. PLAINTIFF LACKS STANDING TO BRING THIS ACTION,

AND HIS COMPLAINT WAS PROPERLY DISMISSED........... 9

II. NINTH CIRCUIT RULES 36-1, 36-2, 36-3, AND 36-4

ARE CONSTITUTIONAL................................ 14

A. Hart v. Massanari controls and plaintiff's

reliance on Anastasoff is misplaced.......... 14

B. Plaintiff's other constitutional

arguments are meritless...................... 20

CONCLUSION................................................. 27

CERTIFICATE OF SERVICE

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

TABLE OF AUTHORITIES

FEDERAL CASES:

Allen v. Wright,

468 U.S. 737 (1984)................................ 12, 13

Anastasoff v. United States,

223 F.3d 898, vacated as moot on other grounds,

235 F.3d 1054 (8th Cir. 2000)...................... passim

Bowers v. Hardwick,

478 U.S. 186 (1986).................................... 15

City of Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432 (1973).................................... 22

City of Los Angeles v. Lyons,

461 U.S. 95 (1983)..................................... 11

Coalition for Economic Equity v. Wilson,

122 F.3d 692 (9th Cir. 1997)........................... 22

In re Complaints of Judicial Misconduct,

9 F.3d 1562 (U.S. Judicial Conference

Committee to Review Circuit Council

Conduct & Disability Orders 1993)...................... 19

Edelstein v. Wilentz,

812 F.2d 128 (3d Cir. 1987)............................ 22

Farley v. Farley,

481 F.2d 1009 (3d Cir. 1973)........................... 20

Giannini v. Real,

911 F.2d 354 (9th Cir. 1990)........................... 22

Hart v. Massanari,

__ F.3d __, 2001 WL 1111647 (9th Cir.)............. passim

Heller v. Doe,

509 U.S. 312 (1993).................................... 23

Helvering v. Hollock,

309 U.S. 106 (1940).................................... 21

James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991).................................... 21

Jones v. Superintendent, Virginia State Farm,

465 F.2d 1091 (4th Cir. 1972).......................... 18

Leis v. Flynt,

439 U.S. 438 (1979).................................... 22

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).................................... 10

Members of City Council of Los Angeles v.

Taxpayers for Vincent,

466 U.S. 789 (1984).................................... 25

Mistretta v. United States,

488 U.S. 361 (1989).................................... 19

NEA v. Finley,

524 U.S. 569 (1998).................................... 14

Nordlinger v. Hahn,

505 U.S. 1 (1992)...................................... 22

Ohralik v. Ohio State Bar,

436 U.S. 447 (1978).................................... 25

Paciulan v. George,

229 F.3d 1226 (9th Cir. 2000).......................... 25

Paciulan v. George,

38 F. Supp. 2d 1128 (N.D. Cal. 1999),

aff'd, 229 F.3d 1226 (9th Cir. 2000)................... 14

Plyler v. Doe,

451 U.S. 202 (1982).................................... 24

Raines v. Byrd,

521 U.S. 811 (1997).................................... 10

San Diego County Gun Rights Committee v. Reno,

98 F.3d 1121 (9th Cir. 1996)....................... 10, 13

Schlesinger v. Reservists Committee to Stop the War,

418 U.S. 208 (1974).................................... 13

Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984)..................................... 25

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996)..................................... 21

Simon v. Eastern Kentucky Welfare Rights Organization,

426 U.S. 26 (1976)..................................... 11

Starbuck v. City and County of San Francisco,

556 F.2d 450 (9th Cir. 1977)........................... 20

Texas Rural Legal Aid, Inc. v. Legal Services Corp.,

783 F. Supp. 1426 (D.D.C. 1992)........................ 25

Turner Broadcasting System v.

Federal Communications Commission,

512 U.S. 622 (1994).................................... 25

Tyler v. Cuomo,

236 F.3d 1124 (9th Cir. 2000)........................... 8

Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc.,

454 U.S. 464 (1982)........................... 10, 11, 12

Warth v. Seldin,

422 U.S. 490 (1975).................................... 13

Whitmore v. Arkansas,

495 U.S. 149 (1990).................................... 11

CONSTITUTIONAL PROVISIONS:

U.S. Const. art. I......................................... 19

U.S. Const. art. III................................... passim

FEDERAL STATUTES:

5 U.S.C. § 702 ............................................. 1

28 U.S.C. § 41 ............................................ 19

28 U.S.C. § 332(a)(1)....................................... 3

28 U.S.C. § 332(d)(1)....................................... 3

28 U.S.C. § 1291............................................ 1

28 U.S.C. § 1331............................................ 1

28 U.S.C. § 1346(a)(2)...................................... 1

28 U.S.C. § 2071(a)......................................... 3

28 U.S.C. § 2072............................................ 3

28 U.S.C. § 2072(a)......................................... 3

28 U.S.C. § 2072(b)......................................... 3

FEDERAL RULES:

Fed.R.App.P. 4(a)(1)(B)..................................... 1

Fed.R.App.P. 47(a)(1)....................................... 3

First Circuit Rule 36(b)(2)(F)............................. 24

Seventh Circuit Rule 53(b)(2)(iv).......................... 24

Ninth Circuit Rule 36-1................................ passim

Ninth Circuit Rule 36-2................................ passim

Ninth Circuit Rule 36-3................................ passim

Ninth Circuit Rule 36-4................................ passim

D.C. Circuit Rule 28(c).................................... 24

Federal Circuit Rule 47.6(b)............................... 24

MISCELLANEOUS:

W. Blackstone, Commentaries on the Laws of England (American ed.1771; reprinted in 1967)..................................... 17

D. Currie, The Constitution in the Supreme Court:

The First Hundred Years, 1789-1888 (1985).............. 18

A. Kozinski & S. Rheinhardt, "Please Don't Cite This!"

Cal. Lawyer 43(June, 2000)............................. 23

A. Hamilton, Essay No. 78, The Federalist Papers........... 16

J. Harrison, "The Power of Congress Over the Rules

of Precedent," 50 Duke L.J. 503 (2000)................. 17

B. Martin, Jr. "In Defense of Unpublished Opinions,"

60 Ohio St. L.J. 177, (1995)........................... 24

18 Moore's Federal Practice ¶134.02[1][d].................. 20

Stern, Gressman, Shapiro, & Geller,

Supreme Court Practice (7th ed. 1993).................. 20

No. 01-16105

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________________

MICHAEL SCHMIER

Plaintiff-Appellant,

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

and JUDICIAL COUNCIL OF THE NINTH CIRCUIT

Defendants-Appellees.

_______________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE APPELLEES

STATEMENT OF JURISDICTION

Plaintiff filed suit in the Northern District of California on November 3, 2000, invoking that court's jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 1346(a)(2), and 5 U.S.C. § 702. The case was dismissed for lack of standing on March 23, 2001. Plaintiff appealed that dismissal on May 22, 2001. See Fed.R.App.P. 4(a)(1)(B). 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 from the Ninth Circuit rules whose validity he challenges.

2. Whether Ninth Circuit Rules 36, 36-1, 36-2, 36-3, and 36-4 are consistent with the judicial power under Article III of the Constitution and the guarantees of equal protection, due process, and free speech.

STATEMENT OF THE CASE

Plaintiff Schmier is an attorney in private practice in California. He brings this case to challenge this Court's rules providing that dispositions of some cases will be unpublished and cannot be cited as precedent in papers submitted to the Court. Plaintiff argues that such rules violate the judicial power under Article III and various other provisions of the United States Constitution. He filed suit in the Northern District of California, seeking a writ of mandamus or prohibition, an injunction, and other appropriate relief, including declaratory relief, that would prohibit the continued enforcement of Ninth Circuit Rules 36-1, 36-2, 36-3, and 36-4.

The district court dismissed, finding that the complaint does not allege any injury, either current or impending, personal to plaintiff as a result of the contested rules. Plaintiff now appeals.

Rule 47(a)(1) of the Federal Rules of Appellate Procedure authorizes each Circuit to "make and amend rules governing its practice." Such local rules must be consistent with Acts of Congress and rules adopted under 28 U.S.C. § 2072. Pursuant to this authority, this Court has promulgated rules to govern practice before it.

Several Circuit Rules govern the publication of dispositions and orders of the Circuit. Circuit Rule 36-1 describes the Court’s written dispositions:

A written, reasoned disposition of a case or motion which is designated as an opinion under Circuit Rule 36-2 is an OPINION of the Court. It may be an authored opinion or a per curiam opinion. A written, reasoned disposition of a case or motion which is not intended for publication

under Circuit Rule 36-2 is a MEMORANDUM. Any other disposition of a matter before the Court is an ORDER. A memorandum or order shall not identify its author, nor shall it be designated "Per Curiam."

All opinions are published; no memoranda are published; orders are not published except by order of the court. As used in this rule, the term PUBLICATION means to make a disposition available to the legal publishing companies to be reported and cited.

Circuit Rule 36-2 sets out criteria for the designation of opinions. Among the criteria are whether the disposition "[e]stablishes, alters, modifies or clarifies a rule of law," "[c]riticizes existing law," or "[i]nvolves a legal or factual issue of unique interest or substantial importance." Circuit Rule 36-2(a), (c), (d).

Circuit Rule 36-3 ("Citation of Unpublished Dispositions or Orders") currently provides:

(a) Not Precedent. Unpublished dispositions and orders of this court are not binding precedent, except when relevant under the doctrines of law of the case, res judicata, and collateral estoppel.

(b) Citation. Unpublished dispositions and orders of this court may not be cited to or by the courts of this circuit except in the following circumstances.

(i) They may be cited to this Court or to or by any other court when relevant under the doctrine of law of the case, res judicata, or collateral estoppel.

(ii) They may be cited to this Court or to or by any other court in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorney's fees, or the existence of a related case.

(iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders.

(c) Attach Copy. A copy of any cited unpublished disposition or order must be attached to the document in which it is cited, as an appendix.³

Circuit Rule 36-4 provides

Publication of any unpublished disposition may be requested by letter addressed to the Clerk, stating concisely the reasons for publication. Such a request will not be entertained unless received within 60 days of the issuance of this Court's disposition. A copy of the request for publication must be served on the parties to the case. The parties will have 10 days from the date of service to notify the Court of any objections they may have to the publication of the disposition. If such a request is granted, the unpublished disposition will be redesignated an opinion.

B. Facts and proceedings below.

Plaintiff Schmier filed suit against the United States Court of Appeals for the Ninth Circuit and the Judicial Council of the Ninth Circuit (Ninth Circuit) in the Northern District of California on November 3, 2000. In his complaint, plaintiff described himself as a "taxpayer, a member of the State Bar of the State of California who practices in the area of employment law and who regularly practices before the United States District Courts in California," and asserted that he is "interested as a citizen and as a duly licensed attorney at law in having the laws executed and the duties in question being enforced." Record Excerpt (RE) 1: Complaint, ¶ 1. He contended that current Circuit Rule 36-3 violates "(1) Article III of the United States Constitution; (2) separation of powers; (3) equal protection and due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution; (4) the freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment to the United States Constitution; and (5) the doctrine of stare decisis." Id., ¶ 7.

Plaintiff alleged that Rule 36-4 "impermissibly creates restraints on the ability of litigants and counsel to express themselves freely and fully . . . ." Ibid. To the extent that Rule 36-3 "allows the courts of this circuit to avoid the precedential effect of prior decisions," plaintiff argued, and Rule 36-4 "operates to allow publication of only certain dispositions of the court, the law is applied inequitably and unequally, and the judicial power is expanded beyond the constitutional bounds of Article III of the Constitution." Ibid. Plaintiff contended that the defendants' "failure to publish all dispositions and [failure] to give each disposition precedential value" thereby "sever[ed] the mechanism by which the public can monitor the application of the law." Id., ¶ 8.

Plaintiff asked that "a Writ of Mandamus, or alternatively, a Writ of Prohibition," be issued, "requiring the publication of all disposition[s] of the courts of this circuit," and "requiring that every disposition of the courts of this circuit shall have precedential effect." RE 1: Prayer for Relief, ¶¶ 1-2. Plaintiff also sought a permanent injunction against the enforcement of Circuit Rules 36-3 and 36-4 and, alternatively, a declaratory judgment as to his right to cite "any and all dispositions of the courts of this circuit as legal precedent." Id., ¶¶ 3-4.

Defendants moved to dismiss, arguing that plaintiff lacked standing, that the district court should not, as a prudential matter, exercise jurisdiction over challenges to its superior court's policies, and that plaintiff's claims were unmeritorious. RE 5: dkt. # 5. After full briefing and a hearing on the motion, the district court dismissed the complaint for lack of standing. RE 3. The district court found that plaintiff had not and could not allege a cognizable injury in fact and therefore dismissed with prejudice. RE 3: Order at 8. Plaintiff now appeals.

C. Standard of review.

Dismissal of a complaint for lack of standing is reviewed de novo. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000).

SUMMARY OF ARGUMENT

Plaintiff has alleged no facts to support a finding that he has standing to bring this action. Plaintiff has never asserted that he has suffered any present or even potential future injury personal to him as a result of Ninth Circuit Rules 36-1, 36-2, 36-3, and 36-4. 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. The district court's dismissal of the complaint for lack of standing should therefore be affirmed.

Plaintiff's case also fails on the merits. His arguments regarding the constitutionality of the this Court's rules concerning the publication and citation of dispositions are completely foreclosed by this Court's recent order in Hart v. Massanari, __ F.3d __, 2001 WL 1111647 (9th Cir.). That opinion considers and rejects each of the major arguments advanced by plaintiff, including refuting the decision upon which he primarily relies, Anastasoff v. United States, 223 F.3d 898, vacated as moot on other grounds, 235 F.3d 1054 (8th Cir. 2000).

Hart correctly holds that 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. The Constitution is silent on administrative matters of the federal courts, and the available historical record does not suggest that a practice of publication and binding precedent, as we now know it, was so uniform that it can be assumed that the Framers intended it to be included, sub silentio, in Article III. Because plaintiff's other claims on the merits are without substance, Hart controls and the dismissal of the complaint should be affirmed.

ARGUMENT

A. PLAINTIFF LACKS STANDING TO BRING THIS ACTION, AND HIS COMPLAINT WAS PROPERLY DISMISSED.

Plaintiff has failed to establish that he has standing. He has not alleged any concrete injury personal to himself from the Ninth Circuit's rules allowing certain dispositions to be unpublished. The only "injury" indicated by the complaint is a generalized interest in the correct exercise of defendants' constitutional duties, but a mere interest in the proper administration of the courts does not confer Article III standing.

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 does not allege any current, personal 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).

Plaintiff has failed to describe any specific or tangible effect of the contested Ninth Circuit rules on any legally cognizable rights. To the extent that plaintiff is concerned about the potential, future impact of Rule 36-3 on his practice, such allegations of future injury are not cognizable in this suit. Lujan, 504 U.S. at 565 n.2. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40 (1976). "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). Plaintiff has not alleged that defendants' policies will cause him any actual future injury greater than the generalized interest he currently expresses in the publication rules.

Even assuming that plaintiff could properly plead a legally cognizable injury in fact, which he has not, plaintiff still would have to demonstrate the requisite causation linking the claimed injury to any conduct of the defendants in promulgating or applying the challenged rules. Plaintiff's general assertions about the rules do not satisfy that requirement. See Valley Forge, 454 U.S. at 472. In addition, plaintiff cannot show that a writ of mandamus would redress his claimed "injury." Plaintiff does not identify how his specific practice of law or his ability to argue cases in the California federal courts will be changed by the invalidation of Rule 36-3.⁴

Plaintiff lacks standing to assert claims on behalf of hypothetical third persons who may be injured by the Ninth Circuit rules in issue. See Allen v. Wright, 468 U.S. 737, 751 (1984) ("Standing doctrine embraces several judicially self‑imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked").

To the extent that plaintiff is asserting that the existence of unpublished dispositions by this Court impairs the ability of the public to know the governing law in the Circuit (Complaint, ¶ 7), plaintiff's alleged injury is not differentiated from such public "injury." Courts do not entertain such generalized grievances. See Allen, 468 U.S. at 751; Warth v. Seldin, 422 U.S. 490, 502‑508 (1975); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217-27 (1974) (a general interest in seeing that the government abides by the Constitution is not sufficiently individuated to constitute an injury for purposes of standing). Plaintiff's interest in the public being aware of Ninth Circuit decisions through the publication of all of its dispositions is far too abstract to give rise to an injury sufficient to support standing under either Article III or the prudential limitations recognized in Allen and other cases. E.g., San Diego County Gun Rights Comm., supra, 98 F.3d at 1131.

* * * * * * *

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.

B. NINTH CIRCUIT RULES 36-1, 36-2, 36-3, AND 36-4

ARE CONSTITUTIONAL.

This Court's order in Hart v. Massanari, __ F.3d __, 2001 WL 1111647 (9th Cir.), issued since plaintiff filed his opening brief in this appeal, forecloses his arguments on the constitutionality of this Court's publication and citation rules. It considered and explicitly rejected the case on which plaintiff principally relies, Anastasoff v. United States, 223 F.3d 898, vacated as moot on other grounds, 235 F.3d 1054 (8th Cir. 2000). Hart is binding precedent and compels the conclusion that plaintiff's constitutional attacks are unmeritorious. None of plaintiff's various theories for the invalidation of the Circuit Rules as unconstitutional has legal merit.⁵

A. Hart v. Massanari controls and plaintiff's reliance

on Anastasoff is therefore misplaced.

Plaintiff asserts that the Ninth Circuit Rules violate Article III of the Constitution, arguing that they permit courts in this Circuit "to avoid the precedential effect of prior decisions" and "allow publication of only certain dispositions of the court." Plaintiff claims that, as a result, "judicial power is expanded beyond the constitutional bounds of Article III . . . ." (Complaint, ¶ 7). This assertion is incorrect.

As this Court recently recognized in Hart, nothing in the text of the Constitution or in the historical record relevant to determining the Framers' intent compels the conclusion that all of 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. That power is subject to limitations enumerated elsewhere in the Constitution, such as the trial by jury requirement of the Seventh Amendment, but is itself more "descriptive than prescriptive." Hart, at * 2. Nothing in the text of the Constitution suggests the limitation proposed by plaintiff.

If there is an implied requirement in the grant of "judicial Power" that all dispositions be published and binding, it must come from the unspoken intentions of the Framers. Courts should be hesitant, however, to infer new Constitutional rights on the basis of the Framers' perceived intent where such rights lack textual support. 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").

The historical record relevant to this issue does not suggest the uniformity of practice regarding the universal and binding nature of precedent and publication at common law necessary to support plaintiff's alleged Constitutional duty to publish every disposition of the federal courts. Hart explains that at, and prior to, the time of the Framing, 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. The Framers could not have assumed without stating that the judicial power necessarily encompassed a requirement that every disposition be published and binding if such was not the practice at common law.

Although the Anastasoff panel attributed to the Founders a firm commitment to incorporate the doctrine of precedent into Article III, the evidence it cited 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.

We are aware of no other evidence, and plaintiff has provided none, that the Framers of the Constitution 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").

Anastasoff relied on the English common law practice regarding precedent for its theory of unconstitutionality. However, 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 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.

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. 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 requirement under Article III.

Plaintiff's assertion that the selective publication of some dispositions as precedent runs afoul of Article III is fundamentally misplaced. To assert that the doctrine of judicial precedent limits judicial power does not mean that court rules such as Circuit Rules 36-1, 36-2, 36-3, and 36-4 are inconsistent with the courts’ adherence to precedent. See Hart, at * 13 and n.35 (discussing protections against irresponsibility without mandatory publication of all opinions); see also Jones v. Superintendent, Virginia State Farm, 465 F.2d 1091, 1094 (4th Cir. 1972), cert. denied, 410 U.S. 944 (1973).

Nor is such a circuit rule inconsistent with the separation of powers. 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).

Plaintiff's argument 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. Such regional variations in the application of law would appear to be inconsistent with plaintiff's theory, 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).

The lower federal courts have long applied the 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 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.

Plaintiff's claim that Circuit Rule 36-3 violates the principle of stare decisis is also incorrect. Plaintiff fails to demonstrate that this 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. In fact, the Supreme Court has observed that the principle of stare decisis is not an absolute one:

It represents an element of continuity in law, and is rooted in the psychological need to satisfy reasonable expectations. But stare 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).

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 13, 18-20. 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.

Plaintiff's assertion that the Rules violate equal protection principles also must be rejected. The fact that Circuit Rules 36-3 and 36-4 make distinctions between published and unpublished dispositions does not give rise to an equal protection claim.

Plaintiff's contention that heightened scrutiny is required is incorrect; no acknowledged fundamental right to published dispositions is implicated by the contested rules. It is settled law that "unless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic," the Equal Protection Clause requires only that the challenged classification "rationally further a legitimate state interest." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).⁶ Such legislative classifications are presumptively valid under the Equal Protection Clause. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1973)("Such legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest."); Coalition for Economic Equity v. Wilson, 122 F.3d 692, 702(9th Cir.), cert. denied, 522 U.S. 963 (1997).

Under the rational basis test, the burden is on the party attacking the rule "to negative every conceivable basis which might support it, . . . whether or not the basis has a foundation in the record," 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, this Court could reasonably conclude that Circuit Rules 36-3 and 36-4 are rationally related to the Court's interest in effective judicial management, both from the standpoint of the number of cases it decides and from the standpoint of issuing decisions that, its panels would determine, are clear and instructive in establishing or applying precedent in the course of resolving the specific parties' dispute. See Hart v. Massanari, 2001 WL 1111647 * 11-15 (9th Cir.). It cannot be considered irrational from a constitutional standpoint for courts to take such factors into account in promulgating and applying rules like Circuit Rules 36-1 through 4. See Alex Kozinski & Stephen Rheinhardt, "Please Don’t Cite This!" Cal. Lawyer 43, 44 (June, 2000). Nor can it be unconstitutional for a court to determine that some decisions will have no or limited impact beyond their facts or the application of a general legal principle to those facts. As Chief Judge Boyce F. Martin, Jr., of the Sixth Circuit has explained:

We are creating a body of law. There is value in keeping that body cohesive and understandable, and not muddying the water with a needless torrent of unpublished opinions. We are living in the midst of an information explosion, not just in the legal realm, but across all fields. In order to navigate our way through the morass of information, we as judges need the latitude to highlight the worthwhile cases.

Hon. Boyce F. Martin, Jr. "In Defense of Unpublished Opinions," 60 Ohio St. L.J. 177, 192 (1995) (footnote omitted).

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, 451 U.S. 202, 216 (1982). The same principle should apply to an equal protection challenge to judicial rules promulgated for effective court administration.⁷ They plainly pass muster under equal protection analysis. Plaintiff cannot show that the challenged rules impair his own First Amendment interests, or those of unidentified litigants, in federal court litigation in California. As one court has explained, "[a]lthough, generally speaking, a lawyer's work always has First Amendment consequences in that it is composed of what the attorney writes or says, this does not mean that a rule that forbids a lawyer from representing a particular type of client in a particular type of case necessarily infringes on the lawyer's First Amendment rights. Otherwise any type of restraint on a lawyer's work . . . would be unconstitutional." Texas Rural Legal Aid, Inc. v. Legal Services Corp., 783 F. Supp. 1426, 1428-29 (D.D.C. 1992). See also Ohralik v. Ohio State Bar, 436 U.S. 447, 459 (1978) ("A lawyer's procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the state's proper sphere of economic and professional regulation."); Paciulan v. George, 229 F.3d 1226, 1230 (9th Cir. 2000)(rejecting challenge to constitutionality of state court rule limiting pro hac vice admission to nonresidents licensed in other states), cert. denied, 531 U.S. 1077 (2001).

Like bar rules or rules governing admission to practice law, the challenged rules are constitutional procedures to govern practice in this Court, and do not infringe upon or burden the First Amendment rights of attorneys or litigants. They are indisputably content neutral, and are not directed at specific speakers or any specific "message." See Turner Broadcasting Sys. v. Federal Communications Comm'n, 512 U.S. 622, 643 (1994); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). Just as courts can take actions at trial that may have some incidental effects on speech, Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984) (sustaining issuance of protective order barring disclosure of discovery information to media), courts may determine that their unpublished dispositions should not be cited to them, even if that arguably may have some incidental effect on litigants' "speech" interests.

CONCLUSION

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

Respectfully submitted,

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

DAVID W. SHAPIRO

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

OCTOBER 2001

CERTIFICATE OF SERVICE

I hereby certify that on October 23, 2001, I served the foregoing Brief for the Appellees by causing two copies to be sent by Federal Express, for overnight delivery, to the following counsel for the plaintiff-appellant:

Kenneth Schmier, Esq.

1475 Powell Street, Suite 201

Emeryville, CA 94608

I also certify that I filed the Brief by causing an original and fifteen copies to be sent by Federal Express, for overnight delivery, to the Clerk, United States Court of Appeals for the Ninth Circuit.

______________________

KATHLEEN A. KANE

Attorney for the Appellees

Form 8. Certificate of Compliance Pursuant to Fed. R. App. 32(a)(7)(C) and Circuit Rule 32-1 for Case Number __

01-16105

Form Must Be Signed By Attorney or Unrepresented Litigant And Attached to the Back of Each Copy of the Brief

I certify that: (check appropriate option(s))

__1. Pursuant to Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening/answering/reply/cross-appeal brief is

q Proportionately spaced, has a typeface of 14 points or more and contains _________ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words),

or is

q Monospaced, has 10.5 or fewer characters per inch and

contains _______ words or ________ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).

__2. The attached brief is not subject to the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because

q This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;

q This brief complies with a page or size-volume limitation established by separate court order dated ____________ and is

q Proportionately spaced, has a typeface of 14 points or more and contains _______ words,

or is

q Monospaced, has 10.5 or fewer characters per inch and contains ______pages or_______ words or ________ lines of text.

__3. Briefs in Capital Cases

q This brief is being filed in a capital case pursuant to the type-volume limitations set forth at Circuit Rule 32-4 and is

q Proportionately spaced, has a typeface of 14 points or more and contains _________ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words)

or is

q Monospaced, has 10.5 or fewer characters per inch and contains _______ words or ________ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

__4. Amicus Briefs

q Pursuant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7000 words or less,

or is

q Monospaced, has 10.5 or fewer characters per inch and contains not more than either 7000 words or 650 lines of text,

or is

q Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed. R. App. P. 32(a)(1)(5).

________ ___________________

Date Signature of Attorney or

Unrepresented Litigant

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).

³The above-quoted version of Circuit Rule 36-3 has been adopted for a 30-month period, from July 1, 2000 through December 31, 2002.

⁴It also is clear that plaintiff has no standing to challenge former Rule 36-3 (see Complaint, ¶ 7), because that version of the Rule cannot take effect any earlier than January 1, 2003, assuming that this Court even reinstates it on or after that date.

⁵ Just as efforts to enjoin Acts of Congress through "facial" constitutional challenges are subject to a high standard of legal proof, the same standard should apply to facial constitutional challenges to rules promulgated by the Judicial Branch. See NEA v. Finley, 524 U.S. 569, 580 (1998); Paciulan v. George, 38 F. Supp. 2d 1128, 1136 (N.D. Cal. 1999), aff’d, 229 F.3d 1226 (9th Cir. 2000)(rejecting challenge to constitutionality of state court rule), cert. denied, 121 S.Ct. 775 (2001).

⁶ Were plaintiff to argue that the selective publication of this Court's decisions impairs his practice of law, such allegations 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); Edelstein v. Wilentz, 812 F.2d 128, 132 (3d Cir. 1987).

⁷ Like this Court, some other Circuits, to varying degrees, prohibit the citation of unpublished decisions, subject to some exceptions. E.g., 1st Cir. Rule 36(b)(2)(F) (permitting citation in "related cases"); 7th Cir. Rule 53(b)(2)(iv) (to establish law of the case, res judicata, or collateral estoppel); D.C. Cir. Rule 28(c)(to establish an earlier case's "binding or preclusive effect"); Fed. Cir. Rule 47.6(b)(a panel may designate a decision as not citable as precedent on the ground that it does "not add[] significantly to the body of law").