STUART E. SCHIFFER
Deputy Assistant Attorney General
DENNIS G. LINDER
THOMAS MILLET
D.C. Bar # 294405
Attorneys, U.S. Department of Justice
Civil Division
Federal Programs Branch
901 E Street, N.W., Suite 906
Washington, D.C. 20530
Telephone: (202) 514-3313
Facsimile: (202) 616-8202

DAVID SHAPIRO
Acting United States Attorney
JOCELYN BURTON (SBN 135879)
Assistant United States Attorney
10th Floor Federal Building, Box 36055
450 Golden Gate Avenue
San Francisco, California 94102
Tel: (415) 436-7198
FAX: (415) 436-6748

Counsel for Defendants

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

_____________________________

_____________________________

TABLE OF CONTENTS

TABLE OF AUTHORITIES -ii-

RELIEF SOUGHT IN THIS MOTION 1

MEMORANDUM OF POINTS AND AUTHORITIES 2

ARGUMENT 6

THIS COURT SHOULD DISMISS PLAINTIFF'S COMPLAINT 6

CONCLUSION 24

____________________________________

TABLE OF AUTHORITIES

CASES

Abbott Laboratories v. Gardner,

387 U.S. 136 (1965) 8, 9

Allen v. Wright,

468 U.S. 737 (1984) 6, 8

American-Arab Anti- Discrimination Committee v. Thornburgh,

970 F.2d 501(9th Cir. 1991) 9

Anastasoff v. United States,

223 F.3d 898 (8th Cir.),

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

In re Arzt,

252 B.R. 138 (Bankr. App. 8th Cir. 2000) 13

Water District,

159 F.3d 1178 (9th Cir. 1998) 14

Association of Medical Colleges v. United States,

217 F.3d 770 (9th Cir. 2000) 10

Bakersfield City School District of Kern County v. Boyer,

610 F.2d 621(9th Cir. 1979) 12

Barron v. Reich,

13 F.3d 1370 (9th Cir. 1994) 12

Bolling v. Sharpe,

347 U.S. 497 (1950) 19

Calderon v. United States Dist. Ct.,

103 F.3d 72 (9th Cir. 1996),

cert denied, 521 U.S. 1129 (1997) 12

Califano v. Sanders,

430 U.S. 99 (1977) 12

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

473 U.S. 432 (1973) 20

City of Las Vegas v. Foley,

747 F.2d 1294 (9th Cir. 1984) 12

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) 6

Coalition for Economic Equity v. Wilson,

122 F.3d 692 (9th Cir.),

cert denied, 572 U.S. 963 (1997) 20

In re Complaints Of Judicial Misconduct,

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

to Review Circuit Council Conduct and Disability

Orders 1993) 17

Conley v. Gibson,

355 U.S. 41 (1957) 14

Edelstein v. Wilentz,

812 F.2d 128 (3d Cir. 1987) 20

Fallini v. Hodel,

783 F.2d 1343, 1345 (9th Cir. 1986) 12

Farley v. Farley,

481 F.2d 1009 (3d Cir. 1973) 19

Fidelity Mortgage Investors,

690 F.2d 35 (2d Cir. 1982),

cert. denied, 462 U.S. 1106 (1983) 12

Frazier v. Heebe,

482 U.S. 641 (1987) 11

Freedom to Travel Campaign v. Newcomb,

82 F.3d 1431 (9th Cir. 1996) 9

Giannini v. Real,

911 F.2d 354 (9th Cir.),

cert. denied, 498 U.S. 1012 (1990) 20

Gomez v. Felker,

1997 WL 227950 (N.D. Cal. April 25, 1997) 11, 13

Guaranty Chevrolet,

35 B.R. 381,(Bankr. S.D. Cal. 1983) 12

Hampton v. Mow Sun Wong,

426 U.S. 88 (1976) 19

Heller v. Doe,

509 U.S. 312 (1993) 20

Helvering v. Hollock,

309 U.S. 106 (1940) 19

James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991) 17

Jones v. Superintendent, Virginia State Farm,

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

cert. denied, 410 U.S. 944 (1973) 17

Kokkonen v. Guardian Life Insurance Co. Of America,

511 U.S. 375 (1994) 10

Lee v. Thornton,

420 U.S. 139 (1975) 12

Leis v. Flynt,

439 U.S. 438 (1979) 20

Luciano v. United States,

No. 00-CV-1725(FB),

2000 WL 1597771 (E.D.N.Y. Oct. 23, 2000) 6, 7

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) 6, 7

Lupert v. California State Bar,

761 F.2d 1325 (9th Cir. 1985) 20

Marusic Liquors, Inc. v. Daley,

55 F.3d 258 (7th Cir. 1995) 9

Matter of Roberts,

682 F.2d 105 (3d Cir. 1987) 20

for Vincent,

466 U.S. 789 (1984) 23

Mistretta v. United States,

488 U.S. 361 (1989) 17

Mullis v. U.S. Bankruptcy Court,

828 F.2d 1385 (9th Cir. 1987),

cert. denied, 486 U.S. 1040 (1988) 10

NEA v. Finley,

524 U.S. 569 (1998) 14

Nationwide Insurance v. Zavalis,

52 F.3d 689 (7th Cir. 1995) 9

Nolan v. Judicial Council of the Third Circuit,

346 F. Supp. 500 (D. N.J.1972), aff'd, 481 F.2d 41

(3d Cir. 1973), cert. denied, 414 U.S. 880 (1973) 11

Nordlinger v. Hahn,

505 U.S. 1 (1992) 20

Ohralik v. Ohio State Bar,

436 U.S. 447 (1978) 23

Oregon Natural Resources Council v. Harrell,

52 F.3d 1499 (9th Cir. 1999) 12

Oriental Health Spa v. City of Ft. Wayne,

864 F.2d 486 (7th Cir. 1989) 9

Paciulan v. George,

38 F. Supp. 2d 112 (N.D. Cal. 1999),

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

cert. denied, 121 S.Ct. 775 (2001) 14,23

Panko v. Rodak,

606 F.2d 168 (7th Cir. 1979),

cert denied, 444 U.S. 1081 (1980) 11

Pareto v. FDIC,

139 F.3d 696 (9th Cir. 1998) 14

Plyler v. Doe,

451 U.S. 202 (1982) 22

Portman v. County of Santa Clara,

995 F.2d 898 (9th Cir. 1993) 9

Rees v. United States District Court,

572 F.2d 700 (9th Cir. 1978) 13

Russell v. Hug, No. C 99-1104 HDV,

1999 WL 592195 (N.D. Cal. Aug. 3, 1999)

appeal pending, No. 99-16999 (9th Cir.) 20

Court for the Northern District of California,

189 F.3d 909 (9th Cir. 1999) 12

San Diego County Gun Rights Committee v. Reno,

98 F.3d 1121 (9th Cir.1996) 6, 9

Schlesinger v. Reservists Committee to Stop the War,

418 U.S. 208 (1974) 8

Schmier v. Supreme Court,

78 Cal. App. 4th 703; 93 Cal. Rptr.2d 580, (Cal.Ct. App.),

cert. denied, 121 S.Ct. 382 (2000) 14

Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984) 23

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996) 19

Siler v. Storey,

587 F. Supp. 986 (N.D. Tex. 1984) 13

Simon v. Eastern Kentucky Welfare Rights Organization,

426 U.S. 26 (1976) 6

Starbuck v. City and County of San Francisco,

556 F.2d 450 (9th Cir. 1977) 19

Tashima v. Administrative Office of the United States Courts,

719 F. Supp.881 (C.D. Cal. 1989),

aff'd, 967 F.2d 1264 (9th Cir.1992) 12

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

783 F. Supp. 1426 (D.D.C. 1992) 23

512 U.S. 622 (1994) 23

United States v. Doherty,

786 F.2d 491 (2d Cir. 1986) 12

United States v. Goldman,

228 F.3d 942 (8th Cir. 2000), petition for

cert. filed, No. 00-7765 (Dec. 28, 2000) 13

United States v. Sumner,

226 F.3d 1005 (9th Cir. 2000) 10

Separation of Church & State, Inc.,

454 U.S. 464 (1982) 6, 7

Warth v. Seldin,

422 U.S. 490 (1975) 8

Washington Legal Foundation v. U.S. Sentencing Commission,

17 F.3d 1446 (D.C. Cir. 1994) 12

Whitehouse v. United States District Court,

53 F.3d 1349 (1st Cir. 1995) 11

Wyler Summit Partnership v. Turner Broadcasting System, Inc.,

135 F.3d 658 (9th Cir. 1998) 14

28 U.S.C. § 41 17

28 U.S.C. § 332 3

28 U.S.C. § 1331 10

28 U.S.C. § 1346(a)(2) 11

28 U.S.C. § 2071(a) 2

28 U.S.C. § 2072 2

5 U.S.C. §§ 551(1)(B) 12

5 U.S.C. § 701(b)(1)(B) 12

5 U.S.C. § 701 11

Article III, United States Constitution passim

United States Court of Appeals for the Ninth Circuit

Cir. Rule 36-1 3

Cir. Rule 36-2 3

Cir. Rule 36-4 passim

United States Court of Appeals for the Eighth Circuit

Cir. Rule 28A(i) 15, 22

United States Court of Appeals for the Seventh Circuit

Cir. Rule 53(b)(2)(iv) 22

United States Court of Appeals for the Sixth Circuit

Cir. Rule 28(g) 22

United States Court of Appeals for the Fourth Circuit

Cir. Rule 36(c) 22

United States Court of Appeals for the District of

Columbia Circuit

Cir. Rule 28(c) 22

United States Court of Appeals for the Eleventh Circuit

Cir. Rule 36-2 22

United States Court of Appeals for the Federal Circuit

Cir. Rule 47.6(b) 22

United States Court of Appeals for the Tenth Circuit

Cir. Rule 36.3(B)(1) 22

Tenth Circuit, Adopted November 18, 1986,

955 F.2d 36 (10th Cir. 1992) 14

Rule 12(b)(6), Federal Rules of Civil Procedure 14

MISCELLANEOUS

Alex Kozinski & Stephen Rheinhardt,
"Please Don't Cite This!" Cal. Lawyer 43 (June 2000) 21

Commission on Revision of the Federal Court Appellate
System, "Structural and Internal Procedures:
Recommendations for Change." (June, 1975) 18

D. Currie, The Constitution in the Supreme Court:
The First Hundred Years,1789-1888 (1985) 18
The Federalist Papers, No. 78 16

George M. Weaver, "The Precedential Value of Unpublished
Judicial Opinions," 39 Mercer L. Rev. 477(1988) 21

Hon. Boyce F. Martin, Jr., "In Defense of Unpublished
Opinions," 60 Ohio St. L.J. 177 (1995) 21, 22

Martha J. Dragich, "Will the Federal Courts of Appeals
Perish If They Publish? Or Does the Declining Use of
Opinions to Explain and Justify Judicial Decisions Pose
a Greater Threat?"44 Am. U. L. Rev. 757 (1995) 22
Stern, Gressman, Shapiro, & Geller, Supreme Court Practice
(7th ed. 1993) 18
18 Moore’s Federal Practice (3d ed.) 19

NOTICE IS HEREBY GIVEN that on March 15, 2001, at 2:00 P.M.,

or as soon thereafter as counsel may be heard by the above-entitled Court, located at 450 Golden

Gate Avenue, San Francisco, California, defendants will and hereby move this Court to dismiss

plaintiff's complaint.

Plaintiff has filed this action against the United States Court of Appeals for the Ninth Circuit and its Judicial Council ("Defendants"), challenging the constitutionality of Ninth Circuit Rule 36-3 and Rule 36-4. Those Rules respectively identify the circumstances in which unpublished dispositions and orders of the Ninth Circuit are binding precedent and can be cited to or by courts within the Ninth Circuit, and when litigants can request the Clerk of the Ninth Circuit to publish such dispositions and orders. Plaintiff asserts that Defendants have violated the Constitution in various respects by "failing to publish all [Ninth Circuit] dispositions and by failing to give each disposition precedential value. . . ." (Complaint, ¶ 8). Plaintiff seeks what he describes as a "Writ of Mandate, or in the alternative, a Writ of Prohibition," or other "appropriate relief" to prohibit Defendants from continuing to apply the two Rules (Complaint, ¶ 2).

RELIEF SOUGHT IN THIS MOTION

Plaintiff's complaint must be dismissed for several independent reasons. First, this Court lacks jurisdiction over plaintiff's claims. Plaintiff has failed to demonstrate his standing to challenge the two Rules under either the constitutional or the prudential formulation of the standing inquiry. Nor has plaintiff demonstrated a basis for this Court, as a district court, to assert jurisdiction over plaintiff's claims against the Defendants. Second, even if there were jurisdiction in this Court to consider plaintiff's claims, plaintiff has not satisfied the very strict requirements for issuance of a writ of mandamus to enjoin the challenged Rules. Finally, plaintiff's constitutional claims are without merit in any event and fail, as a matter of law, to state a claim upon which relief can be granted.

1. Whether Plaintiff has standing to bring this action, which challenges the facial constitutionality of Ninth Circuit Rules 36-3 and 36-4?

2. Whether Plaintiff's facial challenge to the constitutionality of Ninth Circuit Rules 36-3 and 36-4 is "ripe" for adjudication by this Court?

3. Whether this Court has jurisdiction to issue an injunction against Ninth Circuit Rules 36-3 and 36-4?

4. Whether Plaintiff has satisfied the requirements for a writ of mandamus, i.e., an injunction against Ninth Circuit Rules 36-3 and 36-4, in this case?

5. Whether Plaintiff's constitutional claims against Ninth Circuit Rules 36-3 and 36-4, which assert claims under Article III of the Constitution, the doctrine of separation of powers, the principle of stare decisis, Equal Protection principles, and the First Amendment, should be dismissed for failure to state a claim?

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 provides

that "[s]uch rules . . . be consistent with Acts of Congress and rules of practice and procedure" that the Supreme Court prescribes pursuant to its authority under 28 U.S.C. § 2072. Congress has empowered the Supreme Court and the Judicial Councils of the circuits to exercise a degree of control over such rules.

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 – but

not duplicative of– Acts of Congress and rules adopted under 28 U.S.C. § 2072 . . . ." Pursuant to this authority, the Ninth Circuit has promulgated a set of 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

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 "OPINION." 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 36-4 provides

Plaintiff Schmier, who describes 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," asserts 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." (Complaint, ¶ 1). He contends 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 alleges that Rule 36-4 "impermissibly creates restraints on the ability of litigants and counsel to express themselves freely and fully in this society by limiting the content of speech before the very tribunals that are constitutionality charged with protecting free speech." Plaintiff's contention is that "every judicial decision in this Circuit is an interpretation and declaration of a general principle or rule of law which is authoritative to the extent necessary for each particular decision and which should be applied in subsequent decisions to similarly situated parties." (Id.). To the extent that Rule 36-3 "allows the courts of this circuit to avoid the precedential effect of prior decisions, " plaintiff argues, 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." (Id.). Plaintiff contends that the Defendants' "failure to publish all dispositions and [failure] to give each disposition precedential value" thereby "sever[s] the mechanism by which the public can monitor the application of the law." (Id., ¶ 8).

Asserting that district courts such as this one have jurisdiction to resolve "a facial challenge to the validity" of these Rules, plaintiff claims that the constitutional violations he alleges "are continuing daily, and are causing grievous harm to numerous litigants," including plaintiff, and are causing "irreparable damage to the operation of our system of law and to the body politic. . . ." (Complaint, ¶ 8). For relief, plaintiff asks 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 where res judicata has not yet attached to the final judgment," and "requiring that every disposition of the courts of this circuit shall have precedential effect." (Prayer for Relief, ¶¶ 1-2). Plaintiff also seeks a permanent injunction against the enforcement of Circuit Rules 36-3 and 36-4 and, alternatively, a declaratory judgment as to his right "to allow the citation of any and all dispositions of the courts of this circuit as legal precedent." (Id., ¶¶ 3-4).

ARGUMENT

As the Supreme Court has emphasized, at an "irreducible minimum," Article III of the Constitution requires the party who invokes the court's authority to show that he or she personally has suffered "some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)("Valley Forge") (citation and internal quotation marks omitted). This proposition is rooted squarely in the Supreme Court’s conclusion that Article III confines federal courts to adjudicating only "actual cases or controversies." See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984). Moreover, courts have long recognized that, in addition to the constitutional limitations on standing, courts impose a set of prudential limitations in order to avoid addressing questions that are insufficiently precise to warrant judicial review. Valley Forge, supra, 454 U.S. at 474. Plaintiff fails to demonstrate the viability of his claims under either of these concepts of standing.

To establish standing to sue as a constitutional matter, a plaintiff must satisfy three interrelated elements -- first, a plaintiff must demonstrate that he has suffered an "injury in fact, " i.e., an " invasion of a legally protected interest " which is (a) "concrete and particularized, . . . and (b) "actual or imminent," not "conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotations omitted). Second, a plaintiff must show "a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant." Id. (citation omitted). Finally, "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Id. (citation omitted); accord San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996). Plaintiff here can establish none of these prerequisites.

First, plaintiff has not alleged a specific individualized injury. Although he describes himself as an attorney who practices in the federal courts in California, plaintiff provides no specific information as to what injury he personally has suffered as a result of the Rules. Plaintiff identifies no instance during the course of his practice before the federal courts in California, including the Ninth Circuit, in which he wanted to cite an unpublished order or other disposition of the Circuit, but was precluded by the terms of Rule 36-3 from doing so. Nor does plaintiff describe any case in which he has invoked the provisions of Rule 36-4 to request the publication of an unpublished opinion, but in which such request was denied by the Clerk. Plaintiff has failed to describe any specific or tangible effect of Rules 36-3 or 36-4 on his ability to practice law in the California federal courts, or how the Rules have affected any client’s interests that he has represented in those courts. Finally, 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).

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 doe not satisfy that requirement. See Valley Forge, 454 U.S. at 472 (the injury in fact requirement of standing is fulfilled when plaintiffs allege some actual or threatened injury "as a result of the putatively illegal conduct of the defendant"). Finally, plaintiff cannot show that a writ of mandamus will 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.

2. Plaintiff Fails to Meet the Prudential Test for Standing.

Rather than bring a case grounded upon the constitutional elements of the case and controversy requirement of Article III, it is clear that plaintiff's request for a writ of mandamus is an improper attempt to raise the grievances of third parties who are not before the Court. Plaintiff lacks standing to assert such claims. See Allen, 468 U.S. at 751 ("[s]tanding 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 in the Ninth Circuit 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," and in no way has been shown to affect adversely plaintiff's own practice of federal law. Assuming that Defendants' failure to publish all of the Ninth Circuit's dispositions creates any injury at all, that injury presumably would be shared by all citizens affected by Circuit rulings. Courts, however, 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 (1974)("A general interest in seeing that the government abides by the Constitution is not sufficiently individuated or palpable to constitute such an injury."). 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.

Apart from plaintiff's failure to establish his standing to sue in this case, this Court also should dismiss the Complaint because it fails to present a "ripe" controversy. The basic rationale of the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agency from judicial interference until an administrative. decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1965).

In determining whether a claim is ripe, courts consider both "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories, 387 U.S. at 149. A claim is not "fit" for judicial decision when "critical elements are contingent or unknown." See Marusic Liquors, Inc. v. Daley, 55 F.3d 258, 260 (7th Cir. 1995); see also Oriental Health Spa v. City of Ft. Wayne, 864 F.2d 486, 489 (7th Cir. 1989)(claim not fit for review when it involved "'contingent future events that may not occur as anticipated, or indeed may not occur at all'") (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (additional internal quotation omitted)). With regard to the first inquiry, pure legal questions that require little factual development are more likely to be ripe. Abbott Laboratories, 387 U.S. at 149; Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1434-35 (9th Cir. 1996). However, where a challenge is not purely legal, "[a] concrete factual situation is necessary to delineate the boundaries of what conduct the government may or may not regulate . . . ." San Diego Gun Rights Committee, supra, 98 F.3d at 1132. The fact that a party is objectively interested in obtaining a clarification of its rights or responsibilities with respect to the government is not a basis to dispense with the ripeness requirement. Accordingly, a party's request for declaratory relief does not provide it with a right to sue in court. See, e.g., Nationwide Ins. v. Zavalis, 52 F.3d 689, 692 (7th Cir. 1995) (Declaratory Judgment Act "does not dispense with the Article III case or controversy requirement").

In this case, plaintiff's challenge to the Rules is by no means "ripe" for adjudication. Although Rule 36-3 is plainly "final" action by the Ninth Circuit, that circumstance does not support this Court resolving plaintiff's challenge in this case. As explained above, plaintiff does not present a concrete fact pattern in which the applicability of Rule 36-3 could be tested. The validity of the Rule should not be adjudicated in a factual vacuum, which would be the situation if the Court were to consider plaintiff's Complaint. See San Diego Gun Rights Committee, supra, 98 F.3d at 1132 ("At this point, a decision on the merits of plaintiffs' constitutional claims would be devoid of any factual context whatsoever."). Plaintiff's effort to challenge the Rules on their face, without even any specific application to a particular case or precedent, should be rejected. See Association of Medical Colleges v. United States, 217 F.3d 770, 784 (9th Cir. 2000)( holding as not ripe hospitals' challenge to Medicare audit program).

Apart from plaintiff's lack of standing to pursue his challenge to the Rules and the abstract nature of his claims, this Court should alternatively dismiss this action for lack of subject matter jurisdiction. Plaintiff has failed to demonstrate that this Court, as a district court, has jurisdiction to issue an order enjoining the two Rules, which were promulgated by a superior, appellate court.

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. Of America, 511 U.S. 375, 377 (1994); United States v. Sumner, 226 F.3d 1005, 1009 (9^th Cir. 2000). It is the burden in each case of the plaintiff to establish the district court's jurisdiction to hear a complaint. Kokkonen, supra, 511 U.S. at 377. Plaintiff has not done so here, despite his reliance, inter alia, on Article III, Section 2, and 28 U.S.C. § 1331, as bases for this Court’s subject matter jurisdiction over his complaint for mandamus.

The Ninth Circuit has rejected the premise that a district court has the authority to issue injunctive relief against another federal court, having ruled that a district court cannot grant injunctive relief against a bankruptcy court or another district court. Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1393 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988) As the Court explained:

(footnote and citations omitted). The Court also noted that "[n]eedless to say, a district court has no authority to 'review' any ruling of a court of appeals." Id. at 1392 n.18. See also Gomez v. Felker, No. C 97-1218 MHP (PR), 1997 WL 227950, at *1 (N.D. Cal. April 25, 1997) (one district court cannot issue writ of mandamus to another such court). Other courts have rejected the premise that a district court has the authority to review or invalidate the rulings of other federal courts. Panko v. Rodak, 606 F.2d 168, 171 n.6 (7^th Cir. 1979) (dictum, district court could not issue writ of mandamus to Supreme Court Clerk), cert. denied, 444 U.S. 1081 (1980); Nolan v. Judicial Council of the Third Circuit, 346 F. Supp. 500, 512-13 (D. N.J. 1972), aff’d, 481 F.2d 41, 42 (3d Cir. 1973)(district court could not issue writ of mandamus to Judicial Council of the Third Circuit), cert. denied, 414 U.S. 880 (1973).

The only cases that plaintiff cites as grounds for district court jurisdiction to consider his complaint for mandamus relief are readily distinguishable. First, Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir. 1995), involved a challenge to federal district court rule. In that case, the United States Attorney for the District of Rhode Island challenged a local rule of the federal district court of Rhode Island, first through a petition for a writ of mandamus in the First Circuit, arguing that federal prosecutors should be exempted from the rule. The First Circuit dismissed that petition, concluding that the proper method to assert a facial challenge to the validity of the local rule was through a suit for declaratory and injunctive relief filed in the district court. 53 F.3d at 1353. Whitehouse is readily distinguishable since it involved a litigant seeking redress to invalidate a district court rule before the same court that had promulgated the rule. In contrast, this case involves a litigant asking a district court to invalidate a duly-promulgated rule of a superior, appellate court.

Second, Frazier v. Heebe, 482 U.S. 641 (1987), involved a challenge to a federal district court rule concerning the admission of attorneys to practice in that court. Plaintiffs originally filed a writ of prohibition with the Fifth Circuit, but that court remanded the case to the district court to consider the constitutionality of the admissions rule. 482 U.S. at 643. Frazier is not authority for plaintiff's effort to invalidate rules issued by the Ninth Circuit.

Finally, plaintiff cannot demonstrate subject matter jurisdiction over this action under either 28 U.S.C. § 1346(a)(2), or the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. The former statute authorizes only certain damage actions against federal agencies, and does not authorize either declaratory or injunctive relief, which is the relief sought in the Complaint. Lee v. Thornton, 420 U.S. 139, 140 (1975); Bakersfield City School Dist. of Kern County v. Boyer, 610 F.2d 621, 628 (9th Cir. 1979). The APA, by its express terms, excludes the Judicial Branch from its definition of "agency." 5 U.S.C. §§ 551(1)(B), 701(b)(1)(B), and is not an independent basis for subject matter jurisdiction in any event. Califano v. Sanders, 430 U.S. 99, 104-07 (1977). . Courts both within and outside this Circuit have thus concluded that the APA therefore does not apply to such judicial entities or officials. Washington Legal Foundation v. U.S. Sentencing Comm'n, 17 F.3d 1446, 1449 (D.C. Cir. 1994); United States v. Doherty, 786 F.2d 491, 503 (2d Cir. 1986)(holding that federal judges, whether considered individually or collectively, are not "agencies" within 5 U.S.C.§ 551(1)); In re Fidelity Mortgage Investors, 690 F.2d 35, 38 (2d Cir. 1982), cert. denied, 462 U.S. 1106 (1983); Tashima v. Administrative Office of the United States Courts, 719 F. Supp. 881, 886 (C.D. Cal. 1989), aff'd on other grounds, 967 F.2d 1264 (9th Cir. 1992); In re Guaranty Chevrolet, 35 B.R. 381, 384 (Bankr. S.D. Cal. 1983).

It is settled law that a writ of mandamus is an "extraordinary remedy to be used only in exceptional circumstances." City of Las Vegas v. Foley, 747 F.2d 1294, 1296 (9th Cir. 1984). Mandamus is available "only when (1) the plaintiff's claim is 'clear and certain'; (2) the defendant official's duty to act is ministerial, and 'so plainly prescribed as to be free from doubt'; and (3) no other adequate remedy is available." Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994)(quoting Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986)(internal quotations omitted). Such a remedy "lies within the discretion of the trial court even if the three elements are satisfied." Oregon Natural Resources Council v. Harrell, 52 F.3d 1499, 1508 (9th Cir. 1999). The burden is on the petitioner "to show that his right to the writ 'is clear and indisputable.'" SG Crown Securities Corp. v. United States District Court for the Northern District of California, 189 F.3d 909, 913 (9th Cir. 1999) (quoting Calderon v. United States Dist. Ct., 103 F.3d 72, 74 (9th Cir. 1996), cert. denied, 521U.S. 1129(1997)). Plaintiff does not satisfy these requirements, and the Court in any event would be well within its discretion in denying the writ even if plaintiff could establish such requirements.

First, plaintiff cannot show that his "right" is "clear and certain." As discussed in more detail below, the question of whether courts are barred by the United States Constitution from issuing unpublished opinions that have no precedential effect only rarely has been addressed in federal court opinions, most recently in an August, 2000, panel decision from the United States Court of Appeals for the Eighth Circuit, Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). That decision, however, was vacated on rehearing en banc by the Eighth Circuit. 235 F.3d 1054 (8^th Cir. 2000). As the Court concluded: "The constitutionality of that portion of Rule 28A(i) which says that unpublished opinions have no precedential effect remains an open question in this Circuit." Id. at *8. Plaintiff cannot show a "clear right" under the Constitution to the invalidation of Circuit Rule 36-3 given the absence of any case authority supporting his constitutional theories. Nor can plaintiff demonstrate that the Defendants' "duty" – here to declare that all Ninth Circuit dispositions are precedent – is "ministerial." Since the constitutionality of federal rules like Circuit Rule 36-3 has only rarely been addressed, and such rules, to date, have not been invalidated as unconstitutional, it cannot be claimed that Defendants’ "duty" to abrogate such rules in the face of this novel challenge to the Rules is by any means "ministerial." Finally, plaintiff cannot demonstrate that he lacks any alternative, potential avenue of redress for his concern about Circuit Rules 36-3 and 36-4, i.e., the prospect of presenting this issue in a case in which, on some future occasion, he may represent a litigant whose interests actually would be affected by the Rules. In such a case, he could argue directly, through an appropriate appeal, to the Ninth Circuit why application of the Circuit Rule to his client’s position on appeal would be prejudicial.

Putting aside plaintiff's failure to meet the requirements for the issuance of a writ of mandamus, plaintiff's complaint should be dismissed. None of plaintiff's various theories for the invalidation of the Circuit Rules as unconstitutional has legal merit.

Plaintiff asserts that the Rules violate Article III of the Constitution, arguing that the Rules permit courts in the Ninth 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.

In the Anastasoff case, at issue was whether a taxpayer's refund claim was barred by a specific statute of limitations, although the claim had been post-marked for mailing to the IRS within the limitations period. An unpublished decision from a panel of the Eighth Circuit had held that a refund claim was not timely even though so post-marked. The taxpayer asserted that the Eighth Circuit panel was not bound by the unpublished decision, since "it was not a precedent under 8th Circuit Rule 28A(i)." 223 F.3d at 899. The panel disagreed, stating that the Rule, "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." 223 F.3d at 900. It held that "the portion of Circuit Rule 28A(i) that declares that unpublished decisions are not precedent is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond the ‘judicial.’" Id. at 899.

The panel stated that the doctrine of stare decisis was well-established when the Framers wrote the Constitution, and that "the doctrine of precedent was not merely well established; it was the historic method of judicial decision-making, and well regarded as a bulwark of judicial independence in past struggles for liberty." Id. at 900. Thus, the panel believed that the doctrine that prior decisions bind later cases was an essential element of the judicial system in England that was imported to the Colonies, and that "[t]he duty of courts to follow their prior decisions was understood to derive from the nature of the judicial power itself and to separate it from a dangerous union with the legislative power. The statements of the Framers indicate an understanding and acceptance of these principles." Id. at 903. The panel then concluded that "as the Framers intended, the doctrine of precedent limits the ‘judicial power’ delegated to the courts in Article III." Id. at 903.

The panel’s analysis therefore rested on its conclusions concerning English legal practice on the application of case precedent, and the panel’s view that the Framers understood this practice as an essential aspect of the judicial function, differentiating it from legislating. Id. at 901. Accordingly, the panel concluded, the Framers had incorporated the doctrine silently into the Constitution when they stated in Article III, Section 1 that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The panel stated that the "Framers thought that under the Constitution, judicial decisions would become binding precedents in subsequent cases." 223 F.3d at 902.

The fundamental problem with the Eighth Circuit panel's opinion is that it lacks any textual support in the Constitution. 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 Circuit Rule 36-3. To our knowledge, no decision of the Supreme Court or of the lower federal courts has suggested that Article III supports the panel’s conclusion.

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. Essay No. 78 of The Federalist Papers, written by 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’s statement cannot be taken out of context to create a new constitutional principle that has no support in the text of the Constitution.

In summary, there is no reason to conclude that the Framers sub silentio placed in Article III a constitutional requirement that each of the federal courts must treat as binding precedent all of the rulings that a court issues.

The Eighth Circuit panel's conclusion that the selective publication of some dispositions as precedent runs afoul of Article III, therefore, is fundamentally misplaced. To assert that the doctrine of judicial precedent limits judicial power does not mean that a court rule such as Circuit Rule 36-3 is inconsistent with the courts’ adherence to precedent. 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 is such a circuit rule inconsistent with the scope of judicial authority entrusted to the federal courts by Article III. 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, i.e., creating new, positive law. 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, 387 (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).

Second, the panel’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 would appear to be inconsistent with the panel’s decision, for if all decisions of a circuit should be precedents, then that principle, under the panel’s logic, would not be restricted by a circuit’s geographic limits. 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. 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 Anastasoff’s reasoning. 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. Thus, the Court has, in a manner comparable to Circuit Rule 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.

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. E.g., Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9^th 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 Eighth Circuit panel’s theory, this practice would be unconstitutional because litigants must be governed by the same legal ruling in the same court.

Finally, plaintiff's claim that Circuit Rule 36-3 violates 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. In fact, the Supreme Court has observed that the principle of stare decisis is not an absolute one:

Helvering v. Hollock, 309 U.S. 106, 119 (1940); see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 63 (1996).

2. Equal Protection Claims

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.

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). 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). Equal protection does not prohibit different situations being treated differently; it forbids only that like or similarly situated entities or individuals be treated differently. Nordlinger. supra, 505 U.S. at 11; City of Cleburne, supra, 473 U.S. at 440.

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). "A classification does not fail rational-basis review because it 'is not made with mathematical nicety or because in practice it results in some inequality.'" Id. at 521.

In this case, the Ninth Circuit 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. It cannot be considered irrational from a constitutional standpoint for courts to take such factors into account in promulgating and applying rules like Circuit Rule 36-3 . Nor can it be said to 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:

Hon. Boyce F. Martin, Jr. "In Defense of Unpublished Opinions," 60 Ohio St. L.J. 177, 192 (1995) (footnote omitted). Finally, courts may reasonably conclude that were they to issue all their decisions as citable precedents, a number of those decisions would not be published by the legal reporting services. As a result, some litigants could have an advantage in view of their superior resources or their access to court decisions, to the detriment of other litigants. See 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, 451 U.S. 202, 216 (1982) ("A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill."). The same principle should apply to an equal protection challenge to a judicial rule promulgated for effective court administration. They plainly pass muster under equal protection analysis. 3) First Amendment claims

Nor can plaintiff 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, albeit in a different factual context, "[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 (9^th Cir. 2000)(rejecting challenge to constitutionality of state court rule limiting pro hac vice admission to nonresidents licensed in other states), cert. denied, 121 S.Ct. 775 (2001).

Like bar rules or rules governing admission to practice law, the challenged Rules are constitutional procedures to govern practice in the Ninth Circuit, and do not infringe 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, Defendants' Motion to Dismiss should be granted, and this action should be dismissed with prejudice.

STUART E. SCHIFFER
Deputy Assistant Attorney General
DAVID SHAPIRO
Acting United States Attorney
JOCELYN BURTON (SBN 135879)
Civil Chief
Assistant United States Attorney
10th Floor Federal Building, Box 36055
450 Golden Gate Avenue
San Francisco, California 94102
Tel: (415) 436-7198
FAX: (415) 436-6748

DENNIS G. LINDER
Director, Federal Programs Branch
THOMAS MILLET
D.C. Bar # 294405
Attorneys, Civil Division
Federal Programs Branch
United States Department of Justice
Room 906, 901 E St., N.W.
Washington, D.C. 20530
(202) 514-3313

Attorneys for Defendants

Date: February 5, 2001

_________________________________________

Kenneth J. Schmier, Esq.
Attorney at Law
1475 Powell Street, Suite 201
Emeryville, CA. 94608 .
(510) 652-0929 (facsimile)

this ______ day of February, 2001.

THOMAS MILLET
D.C. Bar # 294405
Attorney, Civil Division
Federal Programs Branch
United States Department of Justice
Room 906, 901 E St., N.W.
Washington, D.C. 20530
Telephone: (202) 514-3314