Howard J. Bashman's appellate columns, etc.

An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure

Monday, December 11, 2000


The Unconstitutionality of Non-Precedential Appellate Rulings

By Howard J. Bashman
Monday, December 11, 2000

Federal appellate courts violate the United States Constitution when they deny precedential effect to their unpublished opinions. The United States Court of Appeals for the Eighth Circuit, based in St. Louis, Missouri, reached this unanticipated conclusion on August 22, 2000 when it issued its ruling in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). The ruling portends significant consequences that require the immediate attention of the Philadelphia-based United States Court of Appeals for the Third Circuit. The Third Circuit currently uses unpublished opinions -- decisions issued to the parties' attorneys and the trial judge that never appear in the court's official case law reporter -- to decide more appeals than ever.

In the Anastasoff case, the plaintiff sued the federal government to challenge its refusal to refund federal income tax that she had overpaid. The trial court ruled in favor of the government, and Ms. Anastasoff then appealed to the Eighth Circuit. In its brief on appeal, the government noted that the Eighth Circuit had rejected in an earlier unpublished opinion the precise argument that Ms. Anastasoff was raising. In her reply brief, Ms. Anastasoff contended that the appellate court's earlier unpublished ruling was irrelevant for two reasons. First, she observed that the Eighth Circuit's own rules declare that unpublished opinions lack precedential value, requiring the three-judge panel deciding her appeal to disregard the unpublished decision. Second, she argued that the result the unpublished opinion reached was wrong and, therefore, the opposite result should be reached in her case.

Ms. Anastasoff's appeal thus squarely presented the question whether federal appellate courts may, in the words of the Eighth Circuit, "choose for themselves, from among all the cases they decide, those that they will follow in the future, and those that they need not." The Eighth Circuit reasoned that if it upheld its rule denying precedential effect to unpublished opinions, it would be declaring: "We may have decided this question the opposite way yesterday, but this does not bind us today, and, what's more, you cannot even tell us what we did yesterday." After conducting a detailed historical examination of the U.S. Constitution and of the judicial function both at common law and at the time of the Constitution's framing, the Eighth Circuit ruled unanimously that the Constitution prohibits federal appellate courts from issuing non-precedential opinions. The Eighth Circuit thus renounced its prior creation of "an underground body of law good for one place and time only" and held that its earlier unpublished decision rejecting the very same argument that Ms. Anastasoff was raising required a ruling in the government's favor. To remove any ambiguity about the breadth of its holding, the Eighth Circuit also declared unconstitutional the provision in its Local Rules of Appellate Procedure stating that unpublished opinions are non-precedential.

Circuit Judge Richard S. Arnold, who wrote the Eighth Circuit's opinion in Anastasoff, has in that decision presented an impeccably reasoned explanation of why the U.S. Constitution prohibits federal appellate courts from denying precedential effect to their opinions. If you doubt the soundness of that ruling, which admittedly came as quite a surprise to many appellate judges and practitioners, those doubts will disappear once you review the opinion, which may be accessed online, free of charge, at the Eighth Circuit's Web site (

The Third Circuit has yet to react noticeably to the Eighth Circuit's ruling in Anastasoff. Like the Eighth Circuit, the Third Circuit has its own rule that purports to deny precedential effect to its unpublished opinions. To complicate matters further, the Third Circuit now issues a greater number of unpublished (and therefore supposedly non-precedential) opinions than at any time in its history. Next month's column will address the reasons for, and the consequences and desirability of, the Third Circuit's recent proliferation of unpublished opinions. For present purposes, however, it is sufficient to observe that the Third Circuit today is regularly engaging in the constitutional violation that Anastasoff identifies. Finally, and perhaps most distressingly, the Third Circuit is one of only a few federal appellate courts that refuses to post its unpublished opinions on its Web site ( and refuses to permit its unpublished opinions to appear on Westlaw or Lexis.

Even if all agree with the validity of the Eighth Circuit's ruling in Anastasoff, the decision's consequences are unlikely to be warmly received by federal appellate judges. Federal appellate courts did not adopt local rules denying precedential effect to unpublished opinions to retain the unfettered, and arguably unlawful, discretion to decide a question one way today and then precisely the opposite way tomorrow in a different case. Indeed, the Third Circuit's internal rules recommend that opinions should only be designated as unpublished if they appear to lack precedential value and are likely to be of consequence only to the parties and the trial judge. Unpublished opinions also take less time to prepare and, in most instances, receive less-intensive review from the non-authoring judges on the panel. And, whereas the Third Circuit will not issue a for-publication panel opinion until after every active judge on the court has the opportunity to review and comment on the proposed decision, unpublished opinions can often be issued after having been reviewed only by the other two judges on the panel.

In the more than eleven years that I have been involved in working on appeals, the first two years of which were spent clerking for a Third Circuit judge, I have observed no instance in which any federal appellate court has issued an unpublished opinion because the parties in a given appeal deserved to be treated differently than would parties in a hypothetical, later appeal presenting exactly the same facts and issues. Many appeals that the Third Circuit decides either make no new law or involve questions of state law as to which a state's supreme court is the definitive arbiter. Yet, notwithstanding how very smart they are, federal appellate judges would need to be clairvoyant to anticipate accurately whether today's seemingly unique or unimportant decision will provide decisive precedent for an appeal arising months or years from now.

The Anastasoff decision recognizes the practical concerns at stake: "It is often said among judges that the volume of appeals is so high that it is simply unrealistic to ascribe precedential value to every decision. We do not have enough time to do a decent enough job, the argument runs, when put in plain language, to justify treating every opinion as a precedent." The opinion concludes that these concerns are insufficient to allow federal appellate courts to engage in the unconstitutional practice of denying precedential effect to unpublished opinions. Instead, according to the Eighth Circuit, the remedy "is to create enough judgeships to handle the volume, or, if that is not practical, for each judge to take enough time to do a competent job with each case. If this means that backlogs will grow, the price must still be paid."

To address this problem here at home, the Third Circuit should take the immediate step of providing all newly-released unpublished opinions to Westlaw and Lexis and, as soon as practicable, should begin issuing newly released unpublished opinions on its Web site. For all the many reasons explained in Anastasoff, the Third Circuit should also rescind its rule that purports to deny precedential effect to its unpublished opinions.

The many thousands of unpublished opinions that the Third Circuit has previously issued may give rise to a logistical nightmare, for they too must be recognized as having precedential value, if they have not been overruled by the U.S. Supreme Court or by the Third Circuit sitting en banc or rendered irrelevant by more recent legislative or state law developments. Today this vast body of unpublished Third Circuit law is all but inaccessible to litigants, lawyers and trial judges. If at all possible, the Third Circuit through its Clerk's Office should compile all prior unpublished opinions and release them to Westlaw, Lexis and any other publisher, person or entity willing to purchase them.

Until these steps occur in the Third Circuit and in other federal appellate courts, Anastasoff provides a compelling basis for lawyers to cite and rely on unpublished federal appellate opinions as controlling precedent when arguing their cases in federal court, notwithstanding local rules to the contrary. In Anastasoff's aftermath, federal appellate courts will retain the discretion to decide which opinions are important enough that they should be officially published, but they will no longer have the ability to issue rulings that purport to bind only the parties to a particular appeal but not the court or litigants in future cases.

This article is reprinted with permission from the December 11, 2000 issue of The Legal Intelligencer © 2000 NLP IP Company.

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