Under the leadership of Chief Judge Edward R. Becker, the U.S. Court of Appeals for the Third Circuit has sought to reduce its use of judgment orders when deciding appeals on the merits. The Third Circuit's internal rules permit three-judge panels to use a judgment order to decide an appeal when the panel is unanimously of the view that the judgment should be affirmed, or the appeal dismissed for lack of appellate jurisdiction, and an opinion explaining the panel's reasoning would have no precedential or institutional value. Judgment orders provide no glimpse of the court's reasoning. They simply state that "[a]fter consideration of all contentions raised by appellant, it is adjudged and ordered that the judgment of the district court be and is hereby affirmed."

The Third Circuit's effort to reduce the number of cases decided using judgment orders has succeeded. Statistics from the Administrative Office of the United States Courts show that, in the twelve-month period ending September 30, 1997, the Third Circuit decided 1,873 appeals on the merits and used judgment orders in 991 of those cases. In that period, the Third Circuit used judgment orders to decide a larger number of cases, and a higher percentage of cases, than any other regional federal court of appeals.

The most current statistics available, which cover the twelve-month period ending September 30, 1999, show that the Third Circuit used judgment orders to decide only 215 of the 1,707 cases resolved on the merits. As a result, the Third Circuit no longer has the dubious distinction of being the regional federal court of appeals that uses judgment orders the most.

The number of appeals that the Third Circuit could have decided by means of a judgment order has remained relatively steady in recent years. In both 1997 and 1999, the Third Circuit affirmed the result or dismissed the appeal in approximately 87 percent of all cases decided on the merits.

The statistics also show that the Third Circuit now uses unpublished opinions to decide appeals that it previously disposed of by judgment order. In the twelve-month period ending in September of 1997, the Third Circuit issued 582 unpublished opinions. By contrast, in the twelve-month period ending in September of 1999, the Third Circuit issued 1,167 unpublished opinions. The court issued more than twice as many unpublished opinions in 1999 than it issued in 1997, even though the number of appeals decided on the merits declined slightly and the number of published opinions remained relatively constant.

Several Third Circuit judges have publicly explained that the court has curtailed its use of judgment orders to provide some explanation of the result to lawyers and litigants in even the most simple and straightforward cases. This rationale is praiseworthy. But there are competing concerns which suggest that the Third Circuit might soon decide to use judgment orders more frequently.

Chief on the list of competing concerns is the growing recognition that federal appellate courts lack power under the U.S. Constitution to deny precedential effect to their unpublished decisions. A Third Circuit panel deciding between a judgment order or a not-for-publication opinion is in fact deciding between a truly non-precedential disposition and an opinion that, even if unpublished, very well may bind the court in future cases raising the same issues.

Last month, this column examined the Eighth Circuit's ruling in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), that federal appellate courts act unconstitutionally when they purport to deny precedential effect to their unpublished opinions. In retrospect, however, Anastasoff proved to be an unsuitable vehicle in which to announce that ruling.

The losing party in that case, a taxpayer seeking a refund from the Internal Revenue Service, filed a petition for rehearing en banc. Thereafter, the IRS -- realizing that the Eighth Circuit's decision denying a refund was directly contrary to a recent Second Circuit decision allowing a refund under similar circumstances -- paid the refund to the taxpayer and renounced its position that refunds could be denied in such cases.

In a rather ironic development, the Eighth Circuit's ruling in Anastasoff itself lost all precedential effect when that court, sitting en banc, vacated the panel's judgment and dismissed the case as moot. The en banc court issued a short opinion, written by Circuit Judge Richard S. Arnold, the author of the panel's opinion. See Anastasoff v. United States, No. 99-3917EM, 2000 WL 1863092 (8th Cir. Dec. 18, 2000) (en banc). The en banc opinion contains no criticism of the panel's conclusion that federal appellate courts act unconstitutionally when they deny precedential effect to unpublished opinions. However, because the appeal became moot while the taxpayer's rehearing petition was pending, the Eighth Circuit explained that "the appropriate and customary treatment is to vacate our previous opinion and judgment." The en banc court noted that "[t]he constitutionality of that portion of Rule 28A(i) which says that unpublished opinions have no precedential effect remains an open question in this Circuit."

Notwithstanding this development, I continue to believe that the Eighth Circuit correctly concluded that federal appellate courts lack the power to deny precedential effect to their unpublished opinions. The Third Circuit, which purports to deny precedential effect to its unpublished opinions, has previously found its unpublished decisions to be controlling in effect if not in official status. In Drinker ex rel. Drinker v. Colonial School Dist., 78 F.3d 859, 864 n.12 (3d Cir. 1996), for example, Circuit Judge Morton I. Greenberg, writing for a unanimous panel, explained that a Third Circuit unpublished opinion from 1993 would, "because of the case's factual similarity to that before us," be viewed "as a paradigm of the legal analysis we should here follow." The Third Circuit proceeded in Drinker to quote liberally from the unpublished opinion and reached the same result.

It would thus not represent a sharp break with past practice for the Third Circuit to renounce its rule purporting to deny precedential effect to unpublished opinions. On the other hand, an article published earlier this year in the Yale Law Journal argues that the Constitution does not require that federal court rulings have any precedential effect. See Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535 (2000). Professor Paulsen asserts that Congress could require the U.S. Supreme Court to decide constitutional questions based on the Justices' current understanding of the Constitution, without regard to how the Supreme Court had previously decided similar (or even identical) questions.

My conclusion that the Third Circuit should renounce its internal rule purporting to deny precedential effect to its unpublished opinions leads me to believe that the Third Circuit should again use judgment orders to decide cases where existing law dictates affirmance and the district court or administrative agency has correctly applied the law to the facts. While the Third Circuit should not employ judgment orders as it did in 1997 to decide more than half of the cases resolved on the merits, writing not-for-publication opinions in straightforward appeals where the judgment is being affirmed, simply to provide reasons to the losing party and attorney, often will not be worth the effort. It is certainly not worth the effort if it takes substantial time away from writing for-publication opinions in complicated cases that further the court's principal tasks of declaring law and correcting errors.

Instead of categorically refusing to use judgment orders to decide appeals in civil cases involving non-governmental parties represented by counsel (which apparently is the Third Circuit's current policy), the Third Circuit should continue to use judgment orders in every type of appeal when circumstances merit. Deciding which particular cases are appropriate will require the exercise of discretion, but ruling out the use of judgment orders in one or more broad categories of appeals does not strike me as sound policy.

Experience teaches that some appeals are obviously unsuitable for disposition by means of a judgment order. For example, in the fall of 1992, a breach of contract and business tort case arrived at the Third Circuit in which the jury had awarded to the plaintiff $34.1 million in compensatory damages and $21.5 million in punitive damages. On post-judgment motions, the district court reduced the judgment in plaintiff's favor to $42.3 million, which included $16.5 million in punitive damages. The defendants appealed from the judgment, and the plaintiff cross-appealed from the district court's decision reducing the judgment by more than $13 million.

The parties filed briefs totaling nearly 175 pages accompanied by a multi-volume appendix containing much of the transcript from the two-week jury trial. The Third Circuit panel assigned to the case requested oral argument and allotted twenty-five minutes per side. The appeal was argued on March 16, 1993. On April 7, 1993, the Third Circuit issued a judgment order affirming the district court's judgment. See Ebeling & Reuss Ltd. v. Swarovski Int'l Trading Corp. A.G., Nos. 92-1723 & 92-1746 (3d Cir.).

I remember the case well, because I was the principal author of the plaintiff's appellate briefs. While the Third Circuit's ruling in favor of the plaintiff did not come as a surprise, it remains quite surprising that the court affirmed by means of a judgment order in that complicated and financially significant case. In unsuccessfully seeking further review from the Third Circuit en banc and from the U.S. Supreme Court, the defendants relentlessly attacked the panel's use of a judgment order. In defending the outcome, my colleagues and I relied on Taylor v. McKeithen, 407 U.S. 191, 194 n.4 (1972) (per curiam) ("We, of course, agree that the courts of appeals should have wide latitude in their decisions of whether or how to write opinions. That is especially true with respect to summary affirmances."), and United States v. Baynes, 548 F.2d 481, 482-84 (3d Cir. 1977) (per curiam) (rejecting due process challenge to the affirmance of a criminal conviction by means of a judgment order).

A happy medium undoubtedly exists between almost never using judgment orders and using judgment orders to decide half of the appeals resolved on the merits in a given year or complicated cases awarding more than $40 million in damages. In my view, the Third Circuit should use judgment orders in those many cases where affirmance is clearly dictated by existing precedent and the decision under review adequately and correctly explains the reasons for reaching its results. By retaining the discretion to use judgment orders in all categories of appeals, the Third Circuit will assure itself adequate time to decide the more difficult and important cases and will avoid issuing opinions in those many cases where the law needs no clarification.

This article is reprinted with permission from the January 8, 2001 issue of The Legal Intelligencer � 2001 NLP IP Company.

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