You Want Me to Do What? the Dilemma of Trying to Interpret and Follow Appellate Precedent

• Publication year: 2022

52 Creighton L. Rev. 1. YOU WANT ME TO DO WHAT? THE DILEMMA OF TRYING TO INTERPRET AND FOLLOW APPELLATE PRECEDENT

YOU WANT ME TO DO WHAT? THE DILEMMA OF TRYING TO INTERPRET AND FOLLOW APPELLATE PRECEDENT

TERRENCE L. MICHAEL ^[*]

I. INTRODUCTION

ALMOST 20 YEARS AGO, AS A RELATIVELY NEW BANKRUPTCY JUDGE, I posted a series of brief writing tips to the Court's web site. When it came to case citation, this is what I wrote:

Know the facts of the cases you cite. At the writing of this little ditty, there are almost 300 volumes of West's Bankruptcy Reporter. Suffice it to say that some judge, somewhere, sometime has written and published an opinion which contains the magic words which support your position. It is extremely tempting to insert that quotation (I call them "sound bites") into your brief and say, "see, judge, other courts agree with me so I must be right." This is a dangerous practice. Courts decide real disputes. Real disputes are fact driven. For me, the facts of a case are at least as important as the legal analysis. Be wary of the case which is factually dissimilar to yours, but has a great sound bite. Be sure (either in your brief or at oral argument) to explain why the factually dissimilar case is applicable to your situation. Also, be cognizant of the difference between the holding of a case and the dicta contained therein. Most judges (this one included) find little value in dicta unless we already agree with it. ^[1]

This principle works well in the world of brief writing. After all, a brief is written to a very limited audience (a judge and her clerk) for a very specific purpose (to persuade the judge on one set of facts in one particular case). Judicial decisions are a different animal. Judicial decisions, especially published judicial decisions, are written for a larger audience and a slightly different purpose. While the published trial court decision is written to resolve the dispute between the parties presently before the court, it is also written to shape the behavior of those who might come before the court in the future and to limit future litigation. ^[2]

Published decisions of appellate courts, however, serve a broader function. In the case of decisions of the United States Supreme Court, they are binding upon every court in the land. In a similar fashion, published decisions of the Courts of Appeals for the various circuits bind the lower federal courts. Moreover, appellate court decisions are at least one step removed from the front lines of fact finding. When it comes to bankruptcy cases, an appellate court faces a unique hurdle. Many bankruptcy cases involve an ongoing business or a debtor trying to reorganize her personal affairs. The dispute before the bankruptcy court in an adversary proceeding or contested matter is part of an ongoing process, rather than a single confined dispute. While the bankruptcy court is fully aware of this fact, and cognizant that the issue decided today may affect the decisions made by debtors and creditors tomorrow, that nuance is often lost on the appellate courts.

While there can be no doubt under our current system of jurisprudence lower courts are bound by published decisions of appellate courts, the question remains as to what a trial court is to do with broad pronouncements found in an appellate decision based upon limited or dissimilar facts. The theses advanced here are that lower courts should be permitted to look beyond the broad pronouncements of an appellate court and consider the factual nature of the dispute giving rise to the appellate decision. Also, appellate courts should focus their rulings on the dispute before them rather than make broad statements of law that may be unclear, lead to unintended results in future cases, and, in some cases, be uninterpretable. To demonstrate the issue and the problem, it is necessary to examine the various means by which circuit courts of appeals limit the precedential value of opinions, and one Supreme Court case that has cut a wide precedential swath.

II. THE ABILITY OF THE FEDERAL COURTS OF APPEAL TO LIMIT THE EFFECT OF THEIR DECISIONS

The United States Circuit Courts of Appeals ("CCAs") act as the intermediate level of review between district court decisions and the United States Supreme Court. Unlike Supreme Court review, which is discretionary, the CCAs must hear and consider all appeals submitted to them. ^[3] In most circumstances, CCAs sit in three judge panels. This is done as a matter of necessity; the CCAs do not have the ability to hear each and every decision en banc. ^[4] Since not every circuit court judge weighs in on every decision, and not every circuit judge sees things in the same light, the circuit courts had to come up with a means to allow three judge panels to issue decisions that did not necessarily bind the entire court in all future cases.

The solution was to create two separate types of decisions: published (in the West Reporter system) and unpublished. Published opinions bind all future three judge panels on an issue until the issue is determined by the court en banc, or until the Supreme Court hears and resolves the identical issue. ^[5] Unpublished opinions do not have the same effect.

Prior to 2006 (more or less), many circuits had a rule severely limiting the citation of unpublished opinions. For example, prior to January 1, 2007, Local Rule 36-3 of the United States Court of Appeals for the Ninth Circuit provided that:

(a) Unpublished dispositions and orders of this Court are not binding precedent, except when relevant under the doctrine of law of the case, res judicata, and collateral estoppel. (b) Citation: Unpublished dispositions and orders of this Court may not be cited to or by the courts of this circuit, except in the following circumstances. (i) They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case, res judicata, or collateral estoppel. (ii) They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys' fees, or the existence of a related case. (iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders. (c) Attach Copy: A copy of any cited unpublished disposition or order must be attached to the document in which it is cited, as an appendix. ^[6]

Under this rule, unpublished decisions had no precedential existence. Other circuits had similar rules. ^[7]

Around the turn of the 20th century, courts began to look at these rules with circumspection. One of the most interesting decisions was Anastasoff v. United States ^[8] from the United States Court of Appeals for the Eighth Circuit. ^[9] In that case, Ms. Anastasoff sought a refund of a tax overpayment. The parties did not dispute that an overpayment of taxes had taken place; however, the applicable statute required the claim for refund to be made within three years of the date of the overpayment. She mailed the claim for refund within the three-year period, but the claim was received by the IRS three years and one day after the overpayment was made. The question before the court was whether the "Mailbox Rule" codified in 26 U.S.C. § 7502 applied to the case, making the applicable time period run from the date of mailing rather than the date of receipt. ^[10] In a prior unpublished decision, Christie v. United States, ^[11] the United States Court of Appeals for the Eighth Circuit held that the "Mailbox Rule" did not apply in such situations. Ms. Anastasoff recognized Christie, but argued that it was not binding upon the panel under Eighth Circuit Rule 28(A)(i), and that, in any event, it was wrongly decided.

After a thorough and deliberate analysis, a three judge panel of the Eighth Circuit ruled that unpublished decisions constitute binding precedent, and, to the extent the Eighth Circuit local rule sought to limit the precedential effect of unpublished decisions, it was "unconstitutional under Article III, because it purports to confer on the federal courts power that goes beyond the 'judicial.'" ^[12] The effect of this decision was to remove the distinction between published and unpublished opinions, and make every decision of a three judge panel binding throughout the circuit. As for the merits of the case, the panel ruled that, based upon the prior decision, the "Mailbox Rule" provided no safe harbor for Ms. Anastasoff, and affirmed the judgment of the district court denying her refund claim.

At this point the case becomes interesting. While Anastasoff I was pending, the United States Court of Appeals for the Second Circuit, in a published decision, Weisbart v. United States, ^[13] decided that the "Mailbox Rule" would apply in such situations, and would render the claim for refund timely. Ms. Anastasoff, armed with Weisbart, requested reconsideration of her case en banc. In response to this request, the IRS filed a pleading stating that it "intended to pay the taxpayer's claim in full, with interest at the statutory rate." ^[14] In addition, the IRS advised the Eighth Circuit that it had entered an internal directive modifying its practices and policies...