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Losing Cite: The Anastasoff Rule

by Mark Whitney for TheLaw.net Corporation
Copyright 2002 TheLaw.net Corporation. All rights reserved.

     Who says you can't unring the bell?

     Convinced that she overpaid her Federal income tax, Faye Anastasoff sued IRS for $6,000. Although ably represented pro bono by a blue-chip St. Louis litigation firm, she lost. Thereafter, she pressed an appeal in the United States Court of Appeals for the Eighth Circuit.

     Responding, the Government cited an unpublished opinion in support of its position that the Circuit had already dismissed a different case under similar circumstances. The Government did so notwithstanding Local Rule 28(a)(i) which states in relevant part that "unpublished opinions are not precedent and parties generally should not cite to them."

A Hollow Victory for the United States

     On August 22, the Government got what it wished for and then some. In the course of affirming the district's ruling, Judge Richard Arnold, writing on behalf of a unanimous panel, expressly held that "the portion of Rule28(a)(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond 'judicial.'" Judicial power, the Court noted, should be "based on reason, not fiat." Concurring, Judge Gerald Heaney, praised the Rule 28(a)(i) portion of the opinion and added that the underlying tax question was ripe for en banc review. United States v. Anastasoff I, No. 99-3917EM (August 22, 2000)

Bipartisan Support for the Anastasoff Rule

     So remarkably cogent was Judge Arnold's analysis of Rule 28(a)(i), that not only commentators, but also divergent forums such as National Review, on the left, and Free Republic, on the right, picked up on the potential significance and correctness of this landmark bombshell.

Unringing the Bell En Banc

For her part, Anastasoff, undoubtedly encouraged by Judge Heaney's notation, filed her petition for rehearing en banc. The Government's response, to put it kindly, was shrewd. The United States mooted the case and constructively erased Anastasoff I from the books by suddenly paying Anastasoff $11,437.32, the sum total of her claim with interest.

    As a result, on December 18, in a published opinion that has thus far received little notice, the en banc panel's per curium opinion observed that "[t]he controversy over the status of unpublished opinions is, to be sure, of great interest and importance....Whether unpublished opinions have precedential effect no longer has any relevance....Here, the case having become moot, the appropriate and customary treatment is to vacate our previous opinion and judgment, remand to the District Court, and direct the Court to vacate its judgment as moot." United States v. Anastasoff II, No. 99-3917EM (December 18, 2000)

Looking Back

     Last year, for approximately 120 days, any Eighth Circuit opinion could be cited as precedent. Analogous local rules in alternative jurisdictions were under increased scrutiny by the bench and bar. In at least two published opinions issued after Anastasoff I and before Anastasoff II, the Eighth Circuit followed Anastasoff I. See, United States v. Goldman, No. 00-1276 (September 29, 2000) (Although Dungy is an unpublished opinion, our panel must follow it as precedent); also, United States v. Langmade, No. 00-2019 9December 29, 2000) (Unpublished decisions are binding precedent that district courts must follow.)

     However, on December 18, the Eighth Circuit realigned itself with those Federal and state appellate jurisdictions operating under internal procedures that authorize judges, and only judges, to determine which opinions shall have the force of law and which ones shall not. For example, of the 4,500 opinions issued in 1999 by the United States Court of Appeals for the Ninth Circuit, 3,800 were unpublished. See, Judges Unpublished Opinions Uncovered; also, for a state perspective, see, Unpublished Decisions: Routine Cases or Shadow Precedents?

Advantage: Government Litigants

     With some 40,000 lawyers at the Department of Justice alone, the United States is party to more unpublished opinions than any single litigant. Accordingly, "Not for Publication Rules" provide Governmental instrumentalities with an unfair advantage to the extent such litigants are collectively provided with what functions as an ex-parte window into the soul of our nation's Federal and state appellate courts. For the rest of us the window is sealed shut. Unfortunately, most appellate courts do not even bother to post unpublished opinions to their web sites. Such an inexpensive, good faith gesture would eliminate the need for blind faith and would promote confidence in our nation's appellate courts.

Anastasoff Represents a Worst Case Scenario

In Anastasoff I, the Government was able to use its special knowledge. Indeed, it prevailed by citing an opinion that would have made new law had it been published. The cost of $11,437.32 to moot Anastasoff I was a very small price to pay in the face of a holding which, for a time, converted years of non-precedent to precedent, faster than you can say: "Motion for Rehearing."

The Practical Unavailability of Critical Resources

     It is certainly true that every unpublished opinion is a public record that is technically available to anyone. However, this is of little help to anyone who is not regularly in San Francisco, for example, during Ninth Circuit business hours. The practical reality is that for most of us, including those practicing in our nation's most exclusive private firms, these potentially useful resources exist in name only, while for others they are literally secret weapons.

TheLaw.net Corporation is an Advocate for Fair Play

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additional web based documents and databases increasingly critical to the practice of law. Instead, these resources sit buried among two billion web pages, or perhaps in one of thousands of clunky, so-called free web portals.

     Most of us want fast access to all of the relevant information we can afford and justify.

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     It all begins with a meterless, searchable database containing millions of opinions. This collection is updated four times daily, indexing published and selected unpublished judicial opinions from 176 Federal and state appellate jurisdictions. Besides that, everyone receives fast, intuitive menu driven access to Federal and state statutes, rules, administrative regulations, courts, forms, executive agency databases, legislative tracking tools, practice specific resources, full-text law reviews, news, and a detailed reference desk, itself containing nearly 1,000 resources designed to expedite everyday business tasks.

     For more information about TheLaw.net Professional Legal Browser and February's New Subscriber Licensing Incentives visit our homepage or call toll free 1.877.4.LAWNET.

     Regardless of whether we hear from you, we will continue to aggressively monitor and speak on the issue of unpublished 
opinions and keep you abreast with any meaningful developments in this questionable area of non-law.

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