Fairness and precedent.

• Author: Levin, Daniel B.
• Position: Unpublished opinions as precedent - Case Note

Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000).

In Anastasoff v. United States, (1) the Eighth Circuit invalidated a court rule that prevents litigants from citing unpublished opinions as precedent. More than three-quarters of cases resolved on the merits in the federal courts of appeals result in unpublished opinions(2) and have limited precedential effect. Although precedent plays a crucial institutional role in the judicial system, the Anastasoff rule, by unleashing a flood of new precedent, will disproportionately disadvantage litigants with the fewest resources. Because even important institutional concerns should give way when they impinge on individuals' rights to fair treatment, courts should not abandon the practice of limiting the precedential effect of unpublished opinions.

I

Faye Anastasoff paid income taxes on April 15, 1993. On April 13, 1996, she mailed in a refund claim for overpayment of her 1993 income taxes. The IRS received her claim on April 16, 1996, three years and one day after the original payment, and one day late. Anastasoff argued before the Eighth Circuit that the mailbox rule saved the claim. Another Eighth Circuit panel had rejected precisely the same argument in Christie v. United States,(3) an earlier unpublished opinion. But rather than distinguish Christie, Anastasoff simply told the court it was not bound by the holding because, under Eighth Circuit Rule 28A(i), unpublished opinions do not count as binding precedent.(4)

In a sweeping opinion, the court declared itself bound by Christie and held that Rule 28A(i) unconstitutionally exceeded the boundaries of Article III by allowing the court to avoid the precedential effect of its own decisions. Writing for the unanimous panel, Judge Richard Arnold explained that a declaration and interpretation of general principles of law is "inherent in every judicial decision."(5) This declaration is authoritative and must be applied in subsequent cases. These principles underlay the Framers' conception of judicial power, and, according to Arnold, they limit the power delegated to the courts by Article III.(6)

Arnold briefly addressed and dismissed the practical ramifications of the ruling. First, Arnold emphasized that not all opinions need be published, but they must all carry precedential weight. Second, Arnold rejected the argument that the high volume of appeals faced by the court renders ascribing precedential effect to all decisions unrealistic. Rather, Arnold stated that the remedy should be simply "to create enough judgeships to handle the volume," or to allow a larger backlog of cases.(7)

On December 18, 2000, the Eighth Circuit, sitting en banc, vacated the holding in Anastasoff.(8) The court held that the tax issue became moot when the government decided to pay Anastasoff's claim and declared its acquiescence to the interpretation of the tax statute announced by the Second Circuit in Weisbert v. United States,(9) which was in direct conflict with Christie. Noting that courts decide cases, not issues, the court held that "the constitutionality of that portion of Rule 28A(i) which says that unpublished opinions have no precedential effect remains an open question in this Circuit."(10)

II

Although the Anastasoff holding was short-lived, the case raises a vital issue. Unpublished opinions are a relatively recent phenomenon in the federal courts. The Judicial Conference resolved only in 1964 to give the courts of appeals discretion whether to publish opinions.(11) The movement toward limited publication did not pick up until the early 1970s, when the Federal Judicial Center disseminated a set of recommended standards for publication.(12) By 1974, all the circuits had some sort of limited publication plan.(13) In 1999, the circuit courts disposed of 78.1% of their cases in unpublished opinions.(14) Under the Anastasoff rule, all these cases would carry precedential weight.

Eighth Circuit Rule 28A(i) limits the precedential value of unpublished opinions by barring citation to them. Allowing citation of unpublished opinions will have a tremendous ripple effect for both litigants and judges. Because precedent is worthless without reasoning,(15) judges will need to make their logic and reasoning transparent even in unpublished opinions, increasing the amount of time required to dispose of each case. Litigants with the resources to track down these opinions will have a richer body of precedent from which to draw their arguments, putting them at a systematic advantage over litigants with fewer resources.

Although the Anastasoff court grounded its reasoning in principles of originalism, Judge Arnold gave an earlier clue to his motivations in a piece published one year before his court handed down Anastasoff. In that essay, Arnold acknowledges that tremendous caseload pressure has driven the unpublished opinion movement, but he cites a number of detrimental effects of the practice.(16) First, unpublished opinions may allow judges to reach decisions without bothering to justify them.(17) Second, many cases "with obvious legal importance" are decided by unpublished opinions.(18) Finally, the unpublished opinion...