Cite: The Anastasoff Rule
Mark Whitney for TheLaw.net Corporation
Copyright 2002 TheLaw.net Corporation. All rights reserved.
Who says you can't unring the bell?A Hollow Victory
for the United States
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Responding, the Government cited an unpublished opinion in support of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Rule 28(a)(i) which states in relevant part that "unpublished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
August 22, the Government got what it wished for and then some. In the
course of affirming the district's ruling, Judge Richard
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portion of Rule28(a)(i) that declares that unpublished opinions are not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.
States v. Anastasoff I, No. 99-3917EM (August 22, 2000)
for the Anastasoff Rule
remarkably cogent was Judge Arnold's analysis of Rule 28(a)(i), that not
only commentators, but also divergent forums such as
on the left, and Free
Republic, on the right, picked up on the
potential significance and correctness of this landmark bombshell.
Unringing the Bell
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.
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that "[t]he controversy over the status of unpublished opinions is,
to be sure, of great interest and importance....Whether unpublished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."
States v. Anastasoff II, No. 99-3917EM (December 18, 2000)
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
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);
United States v. Langmade, No. 00-2019 9December 29, 2000) (Unpublished
decisions are binding precedent that district courts must follow.)
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?
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
Represents a Worst Case Scenario
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."
Unavailability of Critical Resources
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.
Corporation is an Advocate for Fair Play
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If you practice in a large environment armed with significant economic power, you are probably still lacking an end-to-end best
practices solution for tracking unpublished opinions in real time as they appear online, to say nothing of the tens of thousands of
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
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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
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Regardless of whether we hear from you, we will continue to aggressively monitor and speak on the issue of unpublished
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