Eighth Circuit declares citation ban unconstitutional.

Some things are not better left unsaid, or better left unpublished, as far as the Eighth Circuit is concerned.

In a decision that harkens back to 18th-century common law, a three-member panel of the Eighth Circuit Court of Appeals, in Anastasoff v. United States, struck down as unconstitutional the portion of the appeals court's Rule 28A(i) that restricts parties from citing unpublished decisions. (223 F.3d 898 (8th Cir. 2000).) The decision has some legal commentators calling for a repeal of similiar rules in other circuits.

Anastasoff sprouted from a taxpayer's attempt to claim a refund on a federal income tax overpayment. The appeals court affirmed a lower court decision against the taxpayer, holding that an unpublished decision, Christie v. United States, could serve as precedent in the case.

Rule 28A(i) stated that "unpublished opinions are not precedent and parties generally should not cite them." The rule made exceptions for establishing res judicata, collateral estoppel, or the law of the case and for situations in which no other published opinion would serve as well.

"We hold that the portion of Rule 28A(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond the `judicial,'" Judge Richard Arnold wrote for the court.

Faye Anastasoff's lawyer, Thomas Walsh of St. Louis, disagrees and has requested an en banc review.

"The court relied on English common law to support its decision," Walsh said. "We don't think that's the American rule. The court has a right to declare decisions nonprecedent.... It's clearly within the court's power to issue such a rule," he said.

Despite the ruling, the IRS sent Anastasoff a $6,436 tax refund check. The U.S. attorney's office now considers the case moot. At press time, the Eighth Circuit had not decided whether the case would be reviewed en banc, according to the clerk's office.

Regardless of the course the appeals court decides to take in Anastasoff, the case has already had an impact far beyond the plaintiff's income tax account. A legal newspaper in Massachusetts, citing the decision, called for a voluntary repeal of a similar First Circuit rule. A New York Times op-ed piece called the decision "startling."

"I'm delighted to see this issue in the spotlight," said University of Pittsburgh School of Law professor Arthur Hellman, an authority on appellate procedure. "The constitutional holding probably won't be long-lasting, but Judge Arnold raises interesting questions of a nonconstitutional nature. I hope those questions will continue to be debated." He said the case could focus attention on the role of unpublished decisions and even the need to appoint more federal appeals court judges.

While some attorneys express support for a repeal of the bans on citing unpublished decisions, Walsh noted they can be hard to find using typical legal research methods.

However, there is some support for their use, even in the First Circuit, where there has been a public call for repeal. "I think it's most unfortunate not to be able to take advantage of an understanding of the law of the circuit by using them in our advocacy," said First Circuit practitioner Joanne D'Alcomo, of Boston.

"It just seems to me, generally speaking, that, if a court writes an opinion, litigants should be able to use the opinion in their advocacy work because it reflects the view of the court," D'Alcomo said. "I can understand designating certain opinions as carrying less weight, but to prevent people from citing them at all seems to try to pretend they were never issued in the first place."