Attorney lacks standing to challenge court's rules.

• Author: Sanders, Carol McHugh
• Position: Unpublished opinions - US 9th Circuit Court of Appeals

In a Ninth Circuit opinion in which all members of the court recused themselves, the panel of judges sitting by designation held that a California attorney lacked standing to challenge the constitutionality of the circuit rules prohibiting citation to unpublished opinions. Schmier v. United States Court of Appeals for the Ninth Circuit, 79 F.3d 817 (2002).

On a different front, the same attorney lost out before the California Court of Appeal, First District, on his bid for attorney's fees arising from his challenge to state court rules governing unpublished opinions. Schmier v. Supreme Court of California, 117 Cal.Rptr.2d 497 (2002). That challenge was turned down in 2000 in 93 Cal.Rptr.2d 580.

Michael Schmier, an attorney practicing employment law in the California federal courts, challenged the constitutionality of Ninth Circuit Rule 36-3, which provides that neither parties nor courts in the Ninth Circuit may cite to an unpublished opinion as precedent. The rule states that unpublished dispositions may be cited only to establish the applicability of collateral estoppel, res judicata or law of the case.

Schmier alleged that, as an attorney practicing in the Ninth Circuit's courts and a citizen personally concerned about the appellate court performing its legal duties, he was entitled to injunctive relief requiring that all orders and opinions issued within the circuit be considered precedential, whether published or not. He claimed that without each opinion carrying the force of precedent, citizens within the circuit were unaware of how the courts were applying enacted laws. Represented by the Department of Justice, the Ninth Circuit moved to dismiss the complaint, arguing that Schmier lacked standing to maintain the suit because he did not allege a legally recognized injury. The district court granted the dismissal motion.

The Ninth Circuit, in an opinion by Judge Michel, sitting by designation from the U.S. Court of Appeals for the Federal Circuit, affirmed. The "bedrock elements" of standing require a plaintiff to (1) establish a legally recognized injury (2) caused by the named defendant and (3) that is capable of legal or equitable redress. Schmier, the panel noted, had neither alleged that he had tried to cite an unpublished opinion in litigation he was handling nor that he was personally sanctioned for doing so. He also did not allege that a court in the Ninth Circuit had failed to recognize an unpublished disposition that...