United States District Court, Northern District of California
March 23, 2001
MICHAEL SCHMIER, PLAINTIFF/PETITIONER,
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, ET AL., DEFENDANTS/RESPONDENTS.
The opinion of the court was delivered by: Walker, District Judge.
In this action against the United States Court of Appeals for the Ninth
Circuit and the Judicial Council of the Ninth Circuit (defendants),
plaintiff and petitioner Michael Schmier challenges the validity of Ninth
Circuit Rules 36-3 and 36-4, which govern the effect of unpublished
opinions, whether they may be cited to or by the courts of this circuit
and the process for requesting publication of such dispositions. Schmier
seeks a writ of mandamus or writ of prohibition from this court that
would require all future dispositions of the courts of this circuit to be
published and have precedential effect. Compl (Doc # 1) at 5-6. Schmier
also requests an injunction preventing defendants from enforcing Ninth
Circuit Rules 36-3 and 36-4, as well as other appropriate relief, such as
a declaration of Schmier's alleged constitutional rights to cite any
disposition of the courts of this circuit. Id at 6. Defendants move to
dismiss. DefBr (Doc # 5). For the reasons set forth below, the motion is
Schmier's complaint contains essentially no factual allegations.
Schmier does not allege that in the case at bar he has tried to cite an
unpublished opinion and has been injured by the circuit rules that
prohibit him from doing so. Nor has he alleged that he has unsuccessfully
requested that an unpublished disposition be published. Rather, Schmier
asserts in a conclusory
manner that he is entitled to seek an order that would prospectively
invalidate Ninth Circuit Rules 36-3 and 36-4 because under these rules
defendants "act contrary to their public duty" and he has "a clear,
present, and substantial right to the performance of [defendant's]
duties, and is personally concerned that [defendants] perform their
duties under the law." Compl. (Doc. # 1), ¶¶ 1-2.
Schmier contends that these circuit rules should be invalidated because
they are unconstitutional and violate the doctrine of stare decisis.
Id., ¶ 7. The court, however, need not, and indeed cannot, reach the
substance of Schmier's arguments.
A As a preliminary issue, the court
believes that the proposition that it has subject matter jurisdiction to
review a rule promulgated by a higher court is dubious at best. Schmier
has failed to point to a statute or case empowering district courts to
evaluate the circuit rules of appellate courts. Instead, Schmier argues
that district courts have the authority to hear challenges to the "local
rules" of any court (including, presumably, those of a higher court) and
that district courts are the appropriate forum in which to initiate such
a challenge. In support of these arguments, Schmier relies on two cases.
See Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557
(1987); Whitehouse v. United States District Court, 53 F.3d 1349 (1st
Cir. 1995). The rules at issue in these cases, however, were local rules
of district courts, not circuit rules of appellate courts. See Frazier,
482 U.S. at 643, 107 S.Ct. 2607; Whitehouse, 53 F.3d at 1353-54.
Accordingly, Schmier has not established a lower court's authority to
invalidate a higher court's rule.
In their motion to dismiss, defendants cite two cases that suggest,
albeit in dicta, that district courts lack the authority to review higher
courts' rules. See Panko v. Rodak, 606 F.2d 168, 171 n. 6 (7th Cir.
1979); Nolan v. Judicial Council of the Third Circuit, 346 F. Supp. 500,
512-13 (D.N.J. 1972), aff'd, 481 F.2d 41, 42 (3d Cir. 1973). In Panko,
the plaintiff sought a writ of mandamus to issue on the clerks of the
Supreme Court. Panko, 606 F.2d at 169. The Seventh Circuit ruminated in a
footnote about the likelihood that it lacked the jurisdiction to order a
higher court to take action:
[I]t seems axiomatic that a lower court may not order
the judges or officers of a higher court to take an
action. [28 U.S.C. §] 1361 seems to grant
jurisdiction; but, if read literally, the language of
§ 1361 would allow a district court to issue
mandamus directly against the Justices of the Supreme
Court themselves. Perhaps this difficulty is best
analyzed as going to the district court's discretion
to refuse mandamus relief even if the elements
justifying relief had been established. Such an
analysis would recognize the difficulty or
impossibility of enforcing an order should the Supreme
Court direct the Clerk's office to ignore it. It would
recognize also the unseemliness of the district judge
interfering in the policies and procedures which the
Court has adopted to minimize the practical
difficulties of dealing with its substantial
Panko, 606 F.2d at 171 n. 6 (citations omitted).
Similarly, the Nolan court speculated that in the event a district
court reviewed the actions of a judicial council under
28 U.S.C. § 1651, it "would present serious incongruities and
practical problems ***." Nolan, 346 F. Supp. at 513 (quoting Chandler v.
Judicial Council of the Tenth Circuit,
398 U.S. 74, 94, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970) (Harlan
concurring)). Although these cases do not involve review of a higher
court's rules, should this court follow Schmier's request and invalidate
Ninth Circuit Rules 36-3 and 36-4, it would be "interfering in the
policies and procedures which the [Ninth Circuit] has adopted to minimize
the practical difficulties of dealing with its substantial caseload." See
Panko, 606 F.2d at 171 n. 6. The court is thus highly skeptical that it
possesses the jurisdiction to conduct such a review. See also Mullis v.
U.S. Bankruptcy Court, 828 F.2d 1385 (9th Cir. 1987) (stating that a
district court cannot issue injunctive relief against another court).
Despite the dubious status of this court's jurisdiction to evaluate the
validity of a higher court's rules, the court concludes that, in any
event, this matter must be dismissed because the court lacks jurisdiction
for an entirely separate reason. As defendants correctly assert, Schmier
cannot demonstrate the standing required to complain about the circuit
rules at issue. Indeed, the court concludes that Schmier can allege no
set of facts in this case that would establish such standing.
"Standing is a threshold question in every case before a federal
court." McMichael v. County of Napa. 709 F.2d 1268, 1269 (9th Cir.
1983). Article III, § 2 of the Constitution limits the jurisdiction
of federal courts to actual "cases" or "controversies." Accordingly, to
establish standing under the Constitution, a plaintiff must demonstrate
(1) an "injury in fact" that is concrete and not conjectural; (2) a
causal connection between the injury and the defendant's alleged
conduct; and (3) a likelihood that the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In addition to these
constitutional requirements, certain prudential limitations may play a
role. Central Arizona Water Conservation Dist. v. United States Envtl.
Protection Agency, 990 F.2d 1531, 1538 (9th Cir.), cert. denied,
510 U.S. 828, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993). The prudential
limitations recognized by courts require a plaintiff to (1) assert his
own rights, rather than rely on the rights or interests of third
parties; (2) allege an injury that is more than a generalized grievance;
and (3) allege an interest that is arguably within the zone of interests
protected or regulated by the statute or constitutional guarantee in
question. Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (1987).
In their motion to dismiss, defendants argue that Schmier cannot
demonstrate standing for, among other reasons, his failure to allege a
concrete injury. "For purposes of ruling on a motion to dismiss for want
of standing, *** the trial *** court must accept as true all material
allegations of the complaint, and must construe the complaint in favor of
the complaining party." Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir.
2000) (citations omitted). At the pleading stage, therefore, a plaintiffs
general factual allegations of injury resulting from the defendant's
conduct may suffice to survive a motion to dismiss. Lujan, 504 U.S. 555,
561, 112 S.Ct. 2130 (1992). Nevertheless, the plaintiff must in fact make
such allegations. See Tyler, 236 F.3d at 1131 (noting that the plaintiff
bears the burden of demonstrating standing). As defendants correctly
assert, Schmier's inability to make allegations about a concrete and
particular injury is fatal to his case.
Under this requirement, Schmier must show that he "sustained or is
immediately in danger of sustaining some direct injury as a result of the
challenged *** conduct and [that] the injury or threat of
injury [is] both real and immediate." City of Los Angeles v. Lyons,
461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal
quotations omitted). Upon a liberal examination of the complaint,
however, the court finds that Schmier has not alleged any facts
demonstrating such an injury. Schmier himself describes his alleged
injury as follows:
Plaintiff alleges that he is an attorney at law who
regularly practices law in the courts of the Ninth
Circuit. He alleges a clear, present, and substantial
right to the performance of Defendants' duties.
Importantly, Plaintiff expressly alleges that the harm
he suffers continues daily and the challenged rules
cause harm to numerous litigants, including
Plaintiff. (Complaint, ¶ 8, 5:8-14.) Plaintiff
alleges that his Constitutional rights guaranteed by
the First and Fifth Amendments have been violated. In
short, Plaintiff has expressly alleged invasion of
legally protected interests which is concrete and
P1OppBr (Doc # 6) at 17.
These allegations may indeed be true. In fact, at the pleading stage,
the court is compelled to presume that they are true. See Johnson v.
Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied, 522 U.S. 996, 118
S.Ct. 559, 139 L.Ed.2d 401 (1997). But these allegations do not
demonstrate that Schmier has suffered or is about to suffer a concrete
and specific injury as a result of the circuit rules at issue. All these
allegations boil down to is that Schmier is an attorney who has to comply
with rules that he believes are unconstitutional and harmful. As
previously noted, however, Schmier does not assert that he has attempted
to cite an unpublished disposition in this action in violation of
Rule 36-3. Nor does Schmier suggest that he attempted to no avail to have an
unpublished disposition published under Rule 36-4. Indeed, Schmier's
opposition to defendants' motion to dismiss did not even contain citations
to any unpublished opinions.
As a recent case in the Eighth Circuit upon which Schmier places great
weight makes clear, in order for a litigant to have standing to challenge
these type of circuit rules, the party must cite an unpublished decision
in an actual case. See Anastasoff v. United States, 223 F.3d 898 (8th
Cir.), vacated on rehearing en banc, 235 F.3d 1054 (8th Cir. 2000)
(evaluating the constitutionality of a circuit rule on unpublished
dispositions after the IRS cited an unpublished decision of the Eighth
Circuit and the taxpayer objected on appeal). Otherwise, there are no
facts for which the litigant can demonstrate an injury. The court
concludes, therefore, that because Schmier has not, and cannot, allege a
cognizable injury in fact in the case presently before the court, the
matter must be dismissed with prejudice for lack of subject matter
For the foregoing reasons, defendants' motion to dismiss (Doc # 5) is
GRANTED. The clerk is directed to close the file and terminate all
IT IS SO ORDERED.
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