Taking the Kozinski Challenge

Cyrus Sanai
The Recorder

The fiercest battle within the federal appellate courts these days is not over abortion or gay marriage, but the arcane question of whether an attorney may cite the unpublished case law of an appellate court as the binding law of the circuit. For the past three years the federal courts have been mulling proposed Federal Rule of Appellate Procedure 32.1, which would allow citation of unpublished cases as binding case law. On Sept. 20, the federal Judicial Conference will be voting on FRAP 32.1; if approved, it will then be submitted to the Supreme Court.

Appellate attorneys and scholars such as Howard Bashman and Thomas Boyle have criticized the federal courts, particularly the Ninth Circuit, for creating a class of decisions which do not bind the court in any way, providing a wide field for an appellate court to decide cases contrary to established precedent without fear that the decision will come back to haunt it. Many judges, particularly the Ninth Circuit's point man in this battle, Judge Alex Kozinski, contend that this fear is imaginary. Recent developments in an arcane offshoot of civil rights law called the Rooker-Feldman doctrine and in extradition law suggest that the critics may be right.

Lawyers who practice mostly in state court may wonder what the fuss is about, since California, like about half the states, has the same non-citation rule, dividing cases into citable published cases and non-citable unpublished cases. However, the detail and quality of unpublished and published California appellate opinions are the same, and attorneys successfully petition the California appellate courts to change the status of an opinion from unpublished to published, or vice versa, every month.

This never happens in the Ninth Circuit - unpublished decisions don't explain why a three-judge panel picked one case to follow versus another. In testimony before Congress, Judge Kozinski argued that because Ninth Circuit rules require its judges to follow the precedent laid down by the first panel to decide a particular legal question, there is no issue. Allowing the more laconic unpublished decisions to be used as binding precedent will just confuse matters.

"Critics of the Ninth Circuit might observe that it is not surprising that its judges refuse to be bound by that court's unpublished opinions, because Ninth Circuit judges so often flout the rule that the court's own published opinions serve as binding precedent." writes Bashman, the appellate specialist whose "How Appealing" Web site frequently broadcasts his view on this issue. Responding to this argument, Kozinski has demanded that he be shown one situation - just one - where the Ninth Circuit is playing fast and loose with its own precedents. The fight thus boils down to a perception by many attorneys and appellate specialists that the Ninth Circuit is frequently not following its own precedents. The court's handling of the Rooker-Feldman issue shows that the Ninth Circuit's adherence to its precedent is rather less strict than Judge Kozinski has represented.

The Supreme Court has repeatedly held that one can sue a state court judge or administrative agency to enjoin unconstitutional proceedings and orders under 42 U.S.C 1983, the same civil rights law used to sue the police for unlawful arrests and excessive force, provided you can get around a rule called "Younger abstention." One way around Younger abstention is to show "extraordinary circumstances," such as the state tribunal having a bias or conflict of interest. To prevent plaintiffs from trying to undo every courtroom loss by finding conflicts of interest in hindsight, the Supreme Court developed the Rooker Feldman doctrine, stating that one could not use federal court to undo a state court judgment after litigation was over, no exceptions permitted.

Beginning in the mid-'80s, appellate courts in the Second, Third and Fifth Circuits began applying Rooker-Feldman to ongoing state proceedings as well as concluded cases, shutting the doors to collateral attacks completely. In 2000, two Ninth Circuit liberals, Judges Sidney Thomas and Kim Wardlaw, rejected this trend in H.C. v. Koppel, 203 F.3d 610, holding that Rooker-Feldman did not apply to ongoing state proceedings. H.C. is no secret; anyone checking the Ninth Circuit's position on Rooker-Feldman in the current Moore's Federal Practice will see the case cited for the proposition "that Rooker-Feldman does not bar district-court review of interlocutory state-court orders."

In 2001 a different, more conservative panel of Ninth Circuit judges ignored the decision in H.C. and decided in Doe Law Offices v. Napolitano, 252 F.3d 1026, that Rooker-Feldman in fact prohibited a plaintiff from complaining about anything being done in state court, ever. The inconvenient H.C. decision was silently dustbinned, and over the last four years the Ninth Circuit issued a score of unpublished decisions which ignored H.C. and instead followed Napolitano, precisely what Judge Kozinski claims never happens in the Ninth Circuit.

In March of this year the Supreme Court intervened in Exxon Mobil v. Saudi Basic Industries, overruling the Third Circuit to hold, once again, that only final judgments after proceedings have ended are covered by Rooker-Feldman. At that point, one would think Napolitano would be history, and that H.C. would be back in the good graces of the Ninth Circuit.Not so.

Barely four months later, after giving lip service to Exxon Mobil, a third panel of the Ninth Circuit ruled in Mothershed v. Justices of the Supreme Court, 410 F.3d 602, that ongoing proceedings magically become final if an appellate court rules on a single federal issue while the proceedings are ongoing, or, as happened in Mothershed, refuses to rule on a single federal issue. Mothershed has the "absolute simplicity" of Joseph Heller's "Catch-22," since under a long-standing Ninth Circuit case, Flangas v. State Bar, 655 F.2d 946, one is generally required to run a claim of bias or conflict of interest with the state appellate courts before arguing "extraordinary circumstances" in federal court to get around Younger. The practical result is that no matter what you do, federal court is now generally barred.

Moreover, the Ninth Circuit continues to cite Napolitano in its unpublished cases as if Exxon Mobil had never been issued. The result is that the Ninth Circuit now has three precedents on its books concerning Rooker-Feldman, none of which agree with each other. The Ninth Circuit's somersaults concerning Rooker-Feldman certainly give ammunition to skeptics of the Ninth Circuit's adherence to its own precedents, let alone the rulings of the Supreme Court.

The Ninth Circuit's en banc procedure is designed to rectify splits within the circuit; on a majority vote of the active judges, 11 judges are randomly selected and rehear the case anew in San Francisco, with authority power to pick one position or another. As far as Rooker-Feldman goes, the Ninth Circuit should grant en banc rehearing of the next decision, published or unpublished, which asks the court to resolve the split among H.C., Napolitano, and Mothershed. However, this is more easily said than done. The process is so cumbersome that the Ninth Circuit rejects half the requests made by its own judges to rehear a case en banc, and very rarely grants en banc review of unpublished cases.

So what should be done to correct this problem? In practical terms, the process needs to be less cumbersome. First, instead of requiring 11 judges to travel to San Francisco, the court should employ videoconferencing to make the en banc rehearing process less intimidating.

Second, the Ninth Circuit should allow the public to address letters to a panel requesting "depublication" of an opinion, as is the practice in California, which would allow the court to rapidly obtain the input of specialist attorneys who would spot a problem or inconsistency.

Third, the Ninth Circuit should abandon its custom of almost never taking unpublished cases en banc. Splits which do develop would be corrected much earlier if all litigants had an equal shot at correcting an inconsistency.

Fourth, Judge Kozinski and the rest of the Ninth Circuit opposing citation to unpublished opinions should concede that the proponents of Rule 32.1 are voicing valid concerns about the dedication of the Ninth Circuit to consistently following the same rules and analysis every time. As an extraordinary en banc case issued this March makes clear, Judge Kozinski and the Rule 32.1 proponents are really on the same side.

In the extradition case of Barapind v. Enomoto, 400 F.3d 740, six judges, including Kozinski, found it necessary to remind the other five that by "instructing three-judge panels and district courts about how to determine what law is binding on them," the court's rule of precedent "constitutes authoritative circuit law." The five-judge dissent argued that "like obscenity, it doesn't seem fruitful to try to pin down" precise definitions of a precedental holding, so the Ninth Circuit judges should be allowed discretion to decide which rules announced in a prior decision are binding and which aren't. If a particular panel sees things "differently from the active judges on this court, the remedy is a rehearing en banc which vacates the panel opinion and affords the court as a whole the opportunity to validate a prior statement or to void it."

In the world advocated by the Barapind dissenters, unpublished decisions, which are too short to parse the precedental rules from mere dicta, would become a complete free for all. The en banc rehearing process, which historically ignores unpublished cases, would be powerless to stop three-judge panels from issuing unpublished decisions that decided a case however the panel wanted it to come out, no matter what the Ninth Circuit precedent or even the Supreme Court said on the question.

Judge Kozinski and the forces in favor of citation of unpublished decisions want the same thing: judicial opinions that consistently apply the same rules from one case to the next. If the position of the Ninth Circuit and Judge Kozinski deserves to prevail, the Ninth Circuit will have to show that it reviews unpublished decisions which present conflict between Ninth Circuit cases as carefully as published decisions, and do so more often. Granting en banc review of the next unpublished decision which raises the three-way Rooker-Feldman conflict would be a good start.

Cyrus Sanai is an attorney with Buchalter Nemer in Los Angeles..