Plaintiff has been singularly unsuccessful in rebutting any of the arguments advanced in support of defendants' motion to dismiss his complaint challenging the constitutionality of Ninth Circuit Rules 36-3 and 36-4. Plaintiff has totally failed to remedy his inability to allege any specific, concrete harm to him that would establish the requisite standing to pursue his claim. This same absence of any concrete factual allegations prevents this Court from knowing how, or even if, the effects of the challenged rules will be felt by plaintiff, and therefore compels dismissal on grounds of ripeness as well as standing. Plaintiff also has not met his burden of establishing this Court's subject matter jurisdiction in the face of Ninth Circuit authority to the contrary. And, most assuredly, plaintiff cannot maintain an action for mandamus to enjoin application of Rules 36-3 and 36-4, where his claim of a “clear and certain” duty is based on a now-vacated decision of the U.S. Court of Appeals for the Eighth Circuit. See Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated on rehearing en banc, 235 F.3d 1054 (8th Cir. 2000).
Plaintiff's complaint also must be dismissed for failure to state a claim upon which relief can be granted. His contention that the challenged Ninth Circuit rules are unconstitutional falls short because (1) he cannot rely on the vacated Anastasoff case; (2) his reliance on James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), is misplaced because, contrary to plaintiff's assertion, that decision was not based on the Constitution, but on choice-of-law principles which do not affect the ability of a federal court to establish its own rules; and (3) in any event, the challenged rules are consistent with the Supreme Court's decision in Beam, because they do provide that decisions of the court of appeals announcing new federal law will constitute binding precedent. Plaintiff's equal protection and due process claims are likewise insufficient to state a cause of action. No fundamental rights are at stake here, and the court's rules easily survive a rational basis analysis. Lastly, plaintiff states no cause of action under the First Amendment when the rules at issue are not based upon the court's disagreement with any viewpoint or subject matter.
I. Plaintiff Has Failed to Articulate a Cognizable Injury and Therefore Lacks Standing
Plaintiff concedes that to assert a justiciable claim he is constitutionally required to allege an “invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical . . . .” Pl.’s Opp’n Br. at 17 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Nevertheless, plaintiff has not identified in either his complaint or his opposition brief, any concrete and particularized injury that he has suffered due to Ninth Circuit Rules 36-3 and 36-4.
For the most part, plaintiff simply contends, without further elaboration or any concrete detail, “that the harm he suffers continues daily and the challenged rules cause harm to numerous litigants, including Plaintiff,” Pl.’s Opp. Br. at 17; and that he “is a member of the Bar who practices before the courts in the Circuit and that he has suffered harm and continues to suffer harm as a result of the disputed rules.” Id. at 19.
Plaintiff also claims that “the rules create restraints on his ability to express himself freely and fully in his practice of law both before the courts and in advising his clients.” Pl.’s Opp’n Br. at 4. This claim, insofar as it challenges the Rule 36-3, at least identifies a specific burden that plaintiff might hypothetically encounter at some future time. Plaintiff does not, however, anywhere allege that this rule has restricted him in the past or is currently keeping him from citing an unpublished Ninth Circuit opinion to a court. It is not sufficient for plaintiff to rely on an imagined instance in the future when he might eventually be harmed by the challenged rules. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 n.2 (1992) (holding that an alleged future injury must be “certainly impending”); Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 2000) (en banc) (“Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution.”). Plaintiff seeks to bolster his standing argument with the contention that various plaintiffs have been found to satisfy constitutional standing requirements even when their injuries were shared by others. See Pl.’s Opp’n Br. at 17-19. This is undoubtedly so. See, e.g., Clinton v. City of New York, 524 U.S. 417, 434 (1998) (holding it “self‑evident” that “more than one party may have standing to challenge a particular action or inaction.”). The flaw in plaintiff’s argument, however, is not that he alleges an injury common to many, but that he fails to identify any concrete injury to the himself at all. See id. at 434-35 (restating principle that a plaintiff must establish “that a particular plaintiff is harmed by the defendant, and that the harm will likely be redressed by a favorable decision”).
None of the “injuries” adduced by plaintiff rise to the level of a concrete and particularized injury, as required under Article III. The facts of Frazier v. Heebe, 482 U.S. 641 (1987), cited by plaintiff, provide a telling contrast. In Frazier, the plaintiff challenged a local rule of the United States District Court for the Eastern District of Louisiana that required members of its bar to maintain either a residence or an office in Louisiana. Plaintiff, an out-of-state member of the Louisiana bar, had applied for bar membership and was denied. He then filed suit challenging the local rule. Plaintiff in the present case alleges no comparably concrete injury.
Plaintiff maintains that if he lacks standing, the contested rules “could not be challenged by anyone because there could be no possible allegations which could support standing.” Pl.’s Opp’n Br. at 19. In their Motion to Dismiss, however, defendants set out a series of allegations that would support a potential plaintiff’s claim of a concrete and particularized injury. None of these allegations appear in plaintiff’s complaint:
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.
Defs.’ Mot. to Dismiss at 6-7.
In the absence of particularized allegations of injury, plaintiff’s amorphous claims are insufficient to establish his standing to maintain this action.
II. Plaintiff’s Claims Are Not Ripe for Judicial Review
Plaintiff argues that “[d]efendants attack the ripeness of the action on the grounds that its factual contours are unknown even though the action has proceeded no further than service of the Complaint.” Pl.’s Opp’n Br. at 20. Plaintiff misses the point. This action should be dismissed – not because its factual contours are insufficiently developed at this stage, but because the complaint lacks factual contours altogether. Plaintiff fails to outline, in however cursory a manner, a concrete factual scenario in which the contested rules have infringed or threatened to infringe upon his protected interests.
The Ninth Circuit considered a ripeness challenge much like the one presented here in Portman v. County of Santa Clara, 995 F.2d 898 (9th Cir. 1993). In that case, a public defender challenged a California statutory scheme which provided that public defenders served at the will of the county. The public defender asserted that, by compromising his independence, the scheme interfered with his clients’ Sixth Amendment rights to effective assistance of counsel. Plaintiff’s suit was dismissed for lack of ripeness, and the Ninth Circuit affirmed:
Portman fails to point to even a single client who has received substandard representation as a result of this statute or whose future representation is threatened in any way. In fact, Portman fails to establish that he was personally representing any clients at the time he was fired, or that if he had not been fired, he would be representing clients. Instead, his entire argument about the effect of the at‑will statute rests upon hypothetical situations and hypothetical clients. . . .
That sort of speculation and conjecture is precisely what the prudential component of the ripeness doctrine is meant to prevent. Portman’s alleged clients’ Sixth Amendment claims are not ripe.
Id. at 903; see also Thomas, 220 F.3d at 1142 (finding that plaintiff landlords’ case was not ripe for judicial review because their claim “rests upon hypothetical situations with hypothetical tenants”). Here, plaintiff similarly asks the Court to conjure a scenario in which the contested rules interfere with his ability to cite a hypothetical Ninth Circuit case to a hypothetical court. Until such time as such a burden actually exists, plaintiff’s claim is premature and unripe for judicial review.
III. Plaintiff Has Failed to Demonstrate that This Court Has Jurisdiction or that Mandamus is Appropriate
Plaintiff defends his contention that this Court is the appropriate forum to adjudicate the validity of rules promulgated by a superior appellate court by relying on Frazier v. Heebe, 482 U.S. 641 (1987), and Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir. 1995). As defendants pointed out in their motion to dismiss, both of these cases involved challenges to the rules of federal district courts. Defs.’ Mot. to Dismiss at 11. Plaintiff still offers no support for his novel contention that a lower court may issue injunctive relief against a superior court of appeals.
Plaintiff maintains that if this Court is not the proper forum for a challenge to the Ninth Circuit’s rules, “then any and all local rules of a Circuit Court of Appeals would be immune from action no matter how unconstitutional because no forum would exist for initiating a facial challenge.” Pl.’s Opp’n Br. at 24. Inexplicably, plaintiff overlooks the factual setting of his leading case, Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated on rehearing en banc, 235 F.3d 1054 (8th Cir. 2000). In Anastasoff, an appeal of a decision by the Internal Revenue Service (IRS), the IRS cited to a prior, unpublished decision of the Eighth Circuit that was directly on point. The appellant taxpayer objected, arguing that the local rules of the Eighth Circuit accorded no precedential weight to unpublished opinions. The Eighth Circuit was then properly faced with the issue that plaintiff prematurely attempts to raise in this suit. Moreover, because that issue emerged in the context of an actual case or controversy, it was also ripe for decision.
Indeed, the challenged rules themselves provide aggrieved parties with an avenue to seek redress. Rule 36-3(b)(iii) provides that a person may cite an unpublished disposition to the court in a request “to publish a disposition or order made pursuant to Circuit Rule 36-4.” A party may also cite an unpublished disposition to the court “in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders.” Ninth Circuit Rule 36-3(b)(iii). These provisions act as fail-safe devices, allowing parties to obtain review of a court’s initial determination not to publish a disposition which the petitioner believes should have been published pursuant to Rule 36-2. Plaintiff’s concern about the “immunity” of circuit court rules is therefore unjustified.
Next, plaintiff largely sidesteps defendants’ argument that he has not established the three requirements for seeking a writ of mandamus. Instead, plaintiff takes issue with the requirements themselves, arguing that “Plaintiff should not be required to establish clear likelihood of success on the merits on the face of the pleading alone . . . .” Pl.’s Opp’n Br. at 25. Nevertheless, this is exactly what plaintiff must establish if he is to seek this “extraordinary remedy.”
Clear precedent in this circuit dictates that, to seek a writ of mandamus, a plaintiff must establish that “(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). The import of the first requirement is that a plaintiff’s right to relief must be manifest. See Greater Los Angeles Council on Deafness v. Baldridge, 827 F.2d 1353, 1362 (9th Cir.1987) (holding that a writ of mandamus is appropriate only when the plaintiff has a “clear right to relief”).
The second requirement – namely, that the duty to act be “ministerial” – is related. “An agency ministerial act for purposes of mandamus relief has been defined as a clear, non‑discretionary agency obligation to take a specific affirmative action, which obligation is positively commanded and so plainly prescribed as to be free from doubt.” Independence Min. Co., Inc. v. Babbitt, 105 F.3d 502, 508 (9th Cir. 1997) (citations and internal quotation marks omitted).
These requirements are admittedly rigorous but they are not, as plaintiff contends, “circular.” Pl.’s Opp’n Br. at 25. Rather, they limit mandamus relief to the rare case with “exceptional circumstances.” City of Las Vegas v. Foley, 747 F.2d 1294, 1296 (9th Cir. 1984). Where those circumstances are not found, dismissal of a plaintiff’s complaint for failure to state a claim is appropriate. See, e.g., Barron, 13 F.3d at 1375 (affirming district court’s grant of motion to dismiss where plaintiff’s right to relief was “anything but clear”).
In the instant situation, plaintiff’s right to relief is anything but clear and manifest. Plaintiff’s sole support for mandamus is his assertion that “courts have routinely found that unpublished dispositions are precedent as a matter of constitutional law since Anastasoff . . . was issued.” Pl.’s Opp’n Br. at 25 (citing United States v. Goldman, 228 F.3d 942 (8th Cir. 2000), petition for certiorari filed, No. 00-7765 (Dec. 28, 2000); In re Arzt, 252 B.R. 138 (Bankr. App. 8th Cir. 2000); Luciano v. United States, No. 00-CV-1725, 2000 WL 1597771 (E.D.N.Y. Oct. 23, 2000)). As defendants pointed out in their opening brief, however, all three of these cases were issued in the four months between the date that Anastasoff was originally decided by the Eighth Circuit and the date that it was vacated on rehearing en banc. See Defs.’ Mot. to Dismiss at 13 n.8. Two of the three cases, Goldman and Arzt, were decided by Eighth Circuit courts that were bound by stare decisis to follow the original Anastasoff decision. (These cases were then impliedly overruled in relevant part by Anastasoff, 235 F.3d 1054 (8th Cir. 2000) (en banc).) The fact that a one-page, unpublished order by the district court in the Eastern District of New York followed the Eighth Circuit’s original Anastasoff ruling hardly establishes a duty on the Ninth Circuit that is “positively commanded and so plainly prescribed as to be free from doubt.” Babbitt, 105 F.3d at 508 (citations and internal quotation marks omitted).
In short, plaintiff has not come close to demonstrating either a “clear right to relief,” Baldridge, 827 F.2d at 1362, or a “plainly prescribed” duty on the Ninth Circuit to publish all of its opinions. Babbitt, 105 F.3d at 508.
IV. Plaintiff’s Substantive Challenges Fail to State a Claim upon which Relief May be Granted
Plaintiff’s complaint raises issues of policy, but it does not allege any cognizable constitutional violations.
A. Article III , Separation of Powers and Stare Decisis Claims
Plaintiff’s basic argument is that the challenged Ninth Circuit rules violate Article III of the Constitution by permitting the Court of Appeals “to avoid the precedential effect of prior decisions.” Pl.’s Compl. at ¶ 7. As defendants have previously pointed out, plaintiff is simply incorrect because there is no textual support in the Constitution for the proposition that the judicial power created in Article III incorporates an absolute principle of stare decisis or an ironclad rule that all judicial decisions, dispositions, and orders must have binding precedential effect. See Defs.’ Mot. to Dismiss at 14‑19. Defendants will not repeat that argument here.
Aside from the now-vacated Anastasoff decision and the three cases decided immediately in its wake, plaintiff relies predominantly on James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), and its proscription on “selective prospectivity” to support his contention that the challenged rules are unconstitutional. Contrary to plaintiff’s characterization, however, see Pl.’s Opp’n Br. at 9, the Beam Court did not prohibit selective prospectivity as a matter of constitutional law. Indeed, the lead opinion of the Court expressly stated that “[t]he grounds for our decision today are narrow. They are confined entirely to an issue of choice of law . . . .” Beam, 501 U.S. at 544. Accordingly, even if the challenged Ninth Circuit rules somehow are found to deny precedential effect to dispositions announcing new rules of law, no violation of Article III or the separation of powers doctrine would be implied.
Moreover, the Ninth Circuit rules at issue are entirely consistent with the Supreme Court’s holding in Beam. The Beam Court was strictly concerned with the retroactivity of new rules of law. See Beam, 501 U.S. at 532. The Court ultimately determined that “when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata.” Id. at 544 (emphasis added). Under the Ninth Circuit Local Rules, dispositions that announce new rules of law are required to be published. Ninth Circuit Local Rule 36-2 provides that “a written, reasoned disposition shall be designated as an OPINION” when the disposition “[e]stablishes, alters, modifies or clarifies a rule of law,” “[c]alls attention to a rule of law which appears to have been generally overlooked,” or “[c]riticizes existing law.” Thus, any new or modified rule of law announced in a Ninth Circuit disposition has full precedential effect, in accordance with Beam.
Plaintiff’s complaint, by contrast, challenges the Ninth Circuit’s rules regarding new dispositions that do not “[e]stablish, alter, modif[y] or clarif[y] a rule of law.” Ninth Circuit Local Rule 36-2. Beam and the concerns that it cites about retroactivity are entirely inapposite to unpublished dispositions that do not announce a new rule of law. See Beam, 501 U.S. at 534 (“In the ordinary case, no question of retroactivity arises. Courts are as a general matter in the business of applying settled principles and precedents of law to the disputes that come to bar. . . . It is only when the law changes in some respect that an assertion of nonretroactivity may be entertained.”); Mayberry v. United States, 151 F.3d 855, 860 (8th Cir. 1998) (“Retroactivity is not at issue when there has been no change in the law.”). Plaintiff therefore fails to state a claim on which relief can be granted.
B. Equal Protection and Due Process Claims
Plaintiff’s claims regarding equal protection and due process are even farther afield. Plaintiff asserts that the Beam decision was “premised . . . on equal protection and due process.” Pl.’s Opp’n Br. at 11. Putting aside the significant differences between the context of Beam and the present case, discussed above, none of the four concurring opinions in Beam so much as mention equal protection or the Due Process Clause, let alone rely upon these concepts. The various opinions are premised on stare decisis and Article III – not the Fifth Amendment.
Furthermore, although plaintiff repeatedly asserts that the challenged Ninth Circuit rules violate the “fundamental rights” of litigants, Pl.’s Opp’n Br. at 12, plaintiff never identifies the fundamental rights to which he is alluding. Instead, plaintiff cites Beam for the general proposition that “[t]he United States Supreme Court has recognized that selective prospectivity violates fundamental rights.” Id. In actuality, the various opinions in Beam do not even allude to the Fifth Amendment or the purported “fundamental rights” of litigants. Neither do the two other cases cited by plaintiff as support for this proposition. See Griffith v. Kentucky, 79 U.S. 314 (1987); Desist v. United States, 394 U.S. 244 (1969). All of these decisions are instead premised upon stare decisis and “the integrity of judicial review.” See, e.g., Beam, 501 U.S. at 537; Griffith, 79 U.S. at 323.
Where there is no suspect class or fundamental right at stake, governmental action “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Such legislative classifications are presumptively valid under the Equal Protection Clause. See 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.”).
The burden is on plaintiff “to negative every conceivable basis which might support [the challenged rule], . . . 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 321.
In their Motion to Dismiss, defendants cited authorities proffering several conceivable interests behind Circuit Rules 36-3 and 36-4, including judicial efficiency and a burgeoning amount of legal material as compared with finite publication resources. See Defs.’ Mot. to Dismiss at 20-21. In response, plaintiff cites authorities who are critical of the Ninth Circuit rules and enigmatically observes that “these very authorities and competing authorities can certainly support the proposition that the rules are very much irrational.” Pl.’s Opp’n Br. at 12 (emphasis in original). This observation falls far short of satisfying plaintiff’s burden of proof “to negative every conceivable basis which might support [the challenged rules] . . . .” Heller, 509 U.S. at 320-21.
C. First Amendment Claims
Plaintiff argues that Rule 36-3 is a content-based restriction on speech, in that it “identifies particular speech content, i.e., unpublished ‘memoranda’ of the court” and “restricts lawyers or litigants from citing or discussing those ‘memoranda’ before the Ninth Circuit.” Pl.’s Opp’n Br. at 14. Plaintiff misunderstands the Supreme Court’s categorization of free speech prohibitions.
The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is “justified without reference to the content of the regulated speech.”
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citations omitted) (emphasis added); Madsen v. Women's Health Center, Inc., 512 U.S. 753, 763 n.2 (1994) (upholding an injunction prohibiting a group of anti-abortion protestors from protesting within 36-feet of an abortion clinic, after the group repeatedly disregarded an earlier court order).
Rule 36-3 does not single out a specific topic or viewpoint for censorship. The rule simply prohibits citation of unpublished memoranda to the Ninth Circuit, regardless of the subject matters or holdings of those dispositions. Plaintiff does not, and cannot, demonstrate that the rule’s purpose is to censor certain messages or viewpoints with which the Court of Appeals disagrees.
Finally, plaintiff errs in labeling Rule 36-3 a “prior restraint on speech.” Pl.’s Opp’n Br. at 14. Content neutral regulations are not evaluated under the Court’s prior restraints jurisprudence. See Avis Rent A Car System, Inc. v. Aguilar, 120 S. Ct. 2029, 2032 n.2 (2000); Schenck v. Pro‑Choice Network of Western N.Y., 519 U.S. 357, 372 (1997).
For the foregoing reasons, Defendants’ Motion to Dismiss should be granted, and this action should be dismissed with prejudice.
Date: March 1, 2001
STUART E. SCHIFFER
Acting Assistant Attorney General
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
DENNIS G. LINDER
Director, Federal Programs Branch
ARTHUR R. GOLDBERG
D.C. Bar # 180661
Attorney, U.S. Department of Justice
Federal Programs Branch
901 E Street, N.W., Suite 1066
Washington, D.C. 20530
Telephone: (202) 514-4783
Facsimile: (202) 616-8470
Attorney for Defendants
 Plaintiff objects that “defendants merely extend their attack on Plaintiff’s standing into an improper challenge of the ripeness of the action as well.” Pl.’s Opp’n Br. at 21. As the Ninth Circuit has stated in a similar context, however, “in measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing.” Thomas, 220 F.3d at 1139 (citation and internal quotation marks omitted). This is the precise inquiry at issue in the instant motion.
 Nor should plaintiff be given leave to amend his complaint because, even if he could allege facts sufficient to meet defendants’ standing and ripeness objections, his complaint would still fail to state a claim upon which relief could be granted. See Part IV, infra.
 Although the plaintiffs in Whitehouse initially challenged a local rule of the Rhode Island Supreme Court in addition to the parallel rule of the Rhode Island federal district court, the First Circuit found that it had “no occasion to address the state version of the Rule,” 53 F.3d at 1366, and therefore did not decide whether it had jurisdiction to review the state supreme court’s rule.
 But see Beam, 501 U.S. at 547 (Blackmun, J., concurring) (finding “selective prospectivity” inconsistent with the basic tenets of Article III); Beam, 501 U.S. at 548 (Scalia, J., concurring) (same).
 Among the rights that the Supreme Court has recognized as fundamental are the right to vote, see Reynolds v. Sims, 377 U.S. 533 (1964); the right to fair access to the criminal process, see Griffin v. Illinois, 351 U.S. 12 (1956); the right to privacy, see Griswold v. Connecticut, 381 U.S. 479 (1965); and the right to interstate travel, see Shapiro v. Thompson, 394 U.S. 618 (1969).