Williams v. Dallas Area Rapid

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10361
_______________
CHARLES ETTA WILLIAMS,
Plaintiff-Appellant,
VERSUS
DALLAS AREA RAPID TRANSIT,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
June 26, 2001
ON PETITION FOR REHEARING EN BANC
(Opinion 2/22/01, 5 Cir., 2001, 242 F.3d 315)
Before POLITZ, SMITH, and PARKER,
Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc
as a petition for panel rehearing, the petition
for panel rehearing is DENIED. The court
having been polled at the request of one of the
members o f the court, and a majority of the
judges who are in regular active service not
having voted in favor (see FED. R. APP. P. 35
and 5TH CIR. R. 35), the petition for rehearing
en banc is DENIED.

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2
JERRY E. SMITH, Circuit Judge, with
whom JONES and DeMOSS,
Circuit Judges, join, dissenting from the
denial of rehearing en banc:
The refusal of the en banc court to rehear
this case en banc is unfortunate, for this is an
opportunity to revisit the questionable practice
of denying precedential status to unpublished
opinions. Although I believe the panel reached
a correct result, based primarily on the test set
forth in Clark v. Tarrant County, 798 F.2d
736 (5th Cir. 1986), I respectfully dissent from
the denial of rehearing en banc, which would
have given this court an opportunity to
examine the question of unpublished opinions
generally, an issue that is important to the fair
administration of justice in this circuit.
I.
Consider what has occurred in this case. In
Anderson v. DART, 180 F.3d 265 (5th Cir.)
(per curiam) (unpublished) (table), cert. de-
nied, 528 U.S. 1062 (1999), a panel of this
court affirmed, “for essentially the reasons
stated by the district court in its comprehen-
sive and well-reasoned opinion,” the judgment
in Anderson v. DART, No. CA3:97-CV-1834-
BC, 1998 U.S. Dist. LEXIS 15493 (N.D. Tex.
Sept. 29, 1998), in which the magistrate judge
had held that “DART is a political subdivision
of the state of Texas, and is therefore immune
from suit under the Eleventh Amendment.”
Id. at *24.
If the Anderson panel had published its
opinion, it would have been binding on the
panel in the instant caseSSWilliamsSSand the
result here would have been different. Based,
however, on the mere fortuity that the Ander-
son panel decided not to publish, our panel in
Williams was free to disagree with Anderson
and to deny to DART the same immunity that
Anderson had conferred on it less than two
years earlier.
What is the hapless litigant or attorney, or
for that matter a federal district judge or mag-
istrate judge, to do? The reader should put
himself or herself into the shoes of the attorney
for DART. That client is told in May 1999, by
a panel of this court in Anderson, that it is
immune, on the basis of a “comprehensive and
well-reasoned opinion.” Competent counsel
reasonably would have concluded, and advised
his or her client, that it could count on
Eleventh Amendment immunity.
Then, in March 2000, in the instant case, a
federal district judge, understandably citing
and relying on the circuit’s decision in An-
derson, holds that “[i]t is firmly established
that DART is a governmental unit or instru-
mentality of the state of Texas.” In February
2001, however, a panel, containing one of the
judges who was on the Anderson panel, re-
verses and tells DART that, on the basis of
well-established Fifth Circuit law from 1986, it
has no such immunity. One can only wonder
what competent counsel will advise the client
now.
II.
Fifth Circuit Rule 47.5.4 specifies that
“[u]npublished opinions issued on or after Jan-
uary 1, 1996, are not precedent, except under
the doctrine of res judicata, collateral estoppel
or law of the case . . . .” This court’s primary
asserted justification for issuing unpublished
opinions is efficiency.1 Indeed, effi
1 See 5TH CIR. R. 47.5.1 (“The publication of
opinions that merely decide particular cases on the
basis of well-settled principles of law imposes
needless expense on the public and burdens on the
(continued...)

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3
ciency may be the only justification for the
practice of issuing unpublished opinions, but
one that cannot be gainsaid. Danny J. Boggs
& Brian P. Brooks, Unpublished Opinions &
the Nature of Precedent, 4 GREEN BAG 2D 17,
19-21 (2000).
The justification for refusing to confer pre-
cedential status on such opinions is more tenu-
ous. It maybe that, when this court pro-
mulgated rule 47.5 in 1995, the relative un-
availability of unpublished opinions rendered
their use as precedent fundamentally unfair.
Today, however, that proposition is untenable:
“Between Lexis and Westlaw, Internet sites
maintained by universities and some of the cir-
cuit courts of appeals, and networks of at-
torneys practicing in particular fields, it is the
rare opinion that is not disseminated for mass
consumption.” Boggs & Brooks, supra,
at 18.2
The primary justification for refusing to
grant unpublished opinions precedential
weightSSat least in this circuitSSis, however,
that an unpublished opinion will not “in any
way interest persons other than the parties to
[that particular] case,” because the opinion
neither establishes a new rule of law, modifies
an existing rule of law, applies an existing rule
to distinct facts, nor concerns any issue of
significant public interest. 5TH CIR. R. 47.5.1.
Thus, at least theoretically, because an un-
published case does nothing new, an older case
easily can be cited for the same proposition,
rendering citation to the unpublished opinion
unnecessary.
To the contrary, however, there are opin-
ions that, though unpublished, do establish a
new rule of law or apply existing law to dis-
tinct facts. In Christie v. United States, No.
91-2375MN (8th Cir. Mar. 20, 1992) (per cur-
iam) (unpublished), the court, addressing the
issue as res nova, held that the “mailbox rule”
does not apply to refund claims against the
Internal Revenue Service. In Anastasoff v.
United States, 223 F.3d 898 (8th Cir.), vacat-
ed as moot, 235 F.3d 1054 (8th Cir. 2000) (en
banc), another panel of the Eighth Circuit
faced the same issue.
In Anastasoff, the taxpayer argued that
Christie, the only Eighth Circuit decision on
point, should be ignored because of its unpub-
lished disposition. The court refused to over-
look Christie, however, declaring that the cir-
cuit’s local rule restricting the precedential
value of unpublished opinions is unconstitu-
tional. Id. at 899. As I will discuss, the
court’s holding on the constitutional question
is at least arguable; Christie, moreover, is in-
structive as a textbook example of an unpub-
lished opinion that in fact does announce a
new rule of law. As I have explained, the
same phenomenon occurred in the instant case.
Empirical evidence suggests that cases such
as Christie and Anderson are more common
than one might think. One study of un-
published opinions found “a surprising number
of reversals, dissents, and concurrences. . . .
suggest[ing] that panels authoring unpublished
opinions reach some results with which other
reasonable judges would disagree. . . .
[F]ailing to give unpublished opinions prece-
1(...continued)
legal profession.”).
2 On the other hand, there are substantial ar-
guments in favor of making unpublished opinions
non-precedential. See, e.g., Alex Kozinski & Ste-
phen Reinhardt, Please Don’t Cite This! Why We
Don’t Allow Citation to Unpublished Disposi-
tions, CAL. LAWYER, June 2000, at 43.

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4
dential effect raises the very specter described
by the Eight Circuit: that like cases will be
decided in unlike ways . . . .” Deborah Jones
Merritt & James J. Brudney, Stalking Secret
Law: What Predicts Publication in the United
States Courts of Appeals, 54 VAND. L. REV.
71, 119 (2001) (citing Anastasoff, 223 F.3d at
901, 905).3 In the first half of 2001, this
circuit has declined to publish at least four
opinions in which a judge dissented,4 indicating
that at least one of our number felt that each of
those cases was not an easy application of
existing law to indistinguishable facts.
III.
For this reason, among others, the issuance
of unpublished, non-precedential opinions re-
cently has come under more intense scrutiny.5
In Anastasoff, Judge Richard Arnold, writing
for the panel that declared the practice un-
constitutional, questioned whether Article III’s
“judicial power” includes the power to
disregard precedent, citing several historical
bases for the conclusion that, when the Con-
stitution was framed, “[t]he duty of courts to
follow their prior decisions was understood to
derive from the nature of the judicial power
itself and to separate it from a dangerous union
with the legislative power,” Anastasoff, 223
F.3d at 930, despite the fact that “[b]efore the
ratification of the Constitution, there was
almost no private reporting and no official re-
porting at all in the American states,” id. The
panel therefore decided that Article III does
not empower a court to ignore any of its prior
cases, unpublished or not. Id.
Anastasoff has generated substantial con-
troversy, and its historical research and con-
clusions have been criticized.6 Even if one dis-
agrees that non-precedential opinions violate
the Constitution, however, the issue is close
enough for this court to give it en banc
consideration.
IV.
In addition to the constitutional issue, the
practice of refusing to recognize unpublished
opinions as precedent raises important pru-
dential questions. As I have said, one assump-
tion on which the practice is basedSSthat such
opinions create no new lawSSis dubious.
Moreover, in this particular case, one must
3 See also Boggs & Brooks, supra, at 20-21
(“As an empirical matter, plenty of unpublished
decisions have been accepted for review and re-
versed by the Supreme Court, demonstrating that
it is difficult to make prospective decisions about
which legal issues are ‘easy’ in the abstract.”).
4 See, e.g., United States v. Vazquez-Hernan-
dez, No. 99-51159 (5th Cir. Apr. 18, 2001) (per
curiam) (unpublished); United States v. Thompson,
No. 99-41007 (5th Cir. Apr. 9, 2001) (un-
published); Nix v. Cain, No. 99-30139 (5th Cir.
Feb. 22, 2001) (per curiam) (unpublished); Lewis
v. FDIC, No. 99-60412 (5th Cir. Feb. 2, 2001)
(unpublished).
5 See, e.g., Anastasoff, 223 F.3d at 899-900;
A.B. 2404, 1999-00 Assem., Reg. Sess. (Cal.
2000) (requiring all state supreme court and ap-
pellate opinions to be available for private publi-
cation and to “constitute precedent under the doc-
trine of stare decisis the same as opinions published
in the official reports.”); see generally Merritt &
Brudney, supra, at 72-74 & nn.5-7 (describing the
debate over unpublished, non-precedential
(continued...)
5(...continued)
opinions, and compiling sources).
6 For a discussion of the criticism and a defense
of Judge Arnold’s conclusions, see Polly J. Price,
Precedent and Judicial Power After the Founding,
42 B.C. L. REV. 81, 82-84, passim (2001).

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question the fundamental fairness of having
two opinions from the same court, one giving
DART Eleventh Amendment immunity and the
other, less than two years later, taking that
immunity away.
The law is supposed to inform the choices
of potential litigants. How can this circuit’s
decisions do so, if they carry no predictive
effect?
Moreover, the justification for unpublished
opinionsSSthat, as a matter of efficiency, the
court should not publish redundant opin-
ionsSSprovides no support for the proposition
that such opinions should carry no precedential
weight. If the opinion is a mere restatement of
existing law (as it must be, if it is accorded
unpublished status), what is the harm in
viewing it as precedent?
There are powerful arguments both for and
against the policy of giving precedential effect
to unpublished opinions. Given the attention
garnered by Anastasoff, both before and after
that litigation was discontinued for mootness,
and given the untoward inconsistency in result
that I have pointed out from our circuit, this
matter surely is important enough for the court
to reconsider en banc.
Even without en banc consideration, I hope
the court will reconsider the efficacy of rule
47.5.4 Because of its refusal to do so in the
form of an en banc rehearing of the Williams
case, I respectfully dissent from the denial of
rehearing en banc.7
7 Although the broad issue of how to handle
unpublished opinions is the main reason to grant en
banc review, there also is a need to reconcile this
court’s jurisprudence on the often-recurring
(continued...)
7(...continued)
question of Eleventh Amendment immunity for
governmental entities. Our caselaw is hopelessly
confused on that issue, and frequently it is difficult
to tell which of our opinions is binding caselaw.
See, e.g., Southwestern Bell Tel. Co. v. City of El
Paso, 243 F.3d 936 (5th Cir. 2001); Reynolds v.
DART, No. Civ. A. 3:98-CV0982M, 2000 U.S.
Dist. LEXIS 15536, at *1 (N.D. Tex. Oct. 20,
2000).

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