## Facts

- Patricia Hart appealed the denial of Social Security benefits to the Ninth Circuit.
- Hart’s appellate counsel cited an unpublished Ninth Circuit disposition, contrary to Ninth Circuit Rule 36-3, which generally barred citation of unpublished dispositions and denied them precedential effect (subject to narrow exceptions).
- The Ninth Circuit issued an order to show cause why counsel should not be disciplined for violating Rule 36-3.
- Counsel responded that Rule 36-3 was unconstitutional under Article III, relying primarily on Anastasoff v. United States, which had argued that all appellate decisions must have binding precedential effect.
- The Ninth Circuit published an opinion focused on the validity of Rule 36-3 and the disciplinary order, rather than on the merits of Hart’s Social Security claim.

## Issues

1. Whether Article III requires federal courts of appeals to treat all dispositions as binding precedent, making Rule 36-3 unconstitutional.
2. Whether a court of appeals may designate some dispositions as non-precedential and generally prohibit their citation as part of judicial administration.
3. Whether Hart’s counsel should be sanctioned for citing an unpublished disposition in violation of Rule 36-3 while asserting a constitutional challenge.

## Decision

- The Ninth Circuit held Rule 36-3 constitutional and rejected the Article III analysis associated with Anastasoff.
- The court concluded Article III does not constitutionalize the doctrine of precedent or compel precedential effect for all appellate dispositions.
- The court declined to sanction counsel, treating the violation as a good-faith (but incorrect) challenge, while warning that future violations would be less excusable after this clarification.

## Legal Principles

- Article III’s grant of “judicial Power” does not require federal appellate courts to give binding precedential effect to every decision they issue.
- The precedential status of appellate decisions is principally a matter of judicial policy and internal court governance, including publication practices and mechanisms such as en banc review.
- Courts of appeals may, consistent with Article III, adopt rules that (1) treat unpublished dispositions as non-precedential and (2) restrict citation of those dispositions, subject to stated exceptions.
- Limiting citation and precedential effect of unpublished dispositions is permissible as an administrative response to high caseloads and the need to maintain a coherent body of published circuit law.

## Conclusion

The Ninth Circuit upheld Rule 36-3’s non-precedential and non-citation framework for unpublished dispositions as consistent with Article III, rejected the claim that all appellate decisions must be binding precedent, and declined to sanction counsel while giving clear notice that the rule remained enforceable.


Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)