Tema y tópico en los titulares

If it is most important that the judges follow the guideline calling for publication of cases involving matters of law of first impression in the circuit, cases in which the court of appeals, instead of announcing a new rule, is only applying an existing rule are legitimately issued as unpublished dispositions; an extensive opinion is said not to be needed if the law to be applied is straightforward, and the Ninth Circuit has long been among those courts which “do not necessarily publish these decisions.”198 _{The general notion is that unpublished dispositions are to}

be used in cases that break no new ground and thus do not pronounce new circuit precedent, and particularly to dispose of cases applying existing law to uncomplicated fact patterns. We can see this in the judge’s comment that “the disposition of this appeal requires no more than an unpublished memorandum, as the result reached . . . involves a routine application of our asylum law.”199

Of course, “application” to one person is interpretation or “rule- development” to another, and some see an application of a rule to new facts as developing precedent, thus requiring publication.200 _{Among the}

latter type of situations are those involving use of Supreme Court decisions. For example, in deciding an appeal by a doctor charged with issuing methadone for non-medical reasons,201 _{the judges said that doubts}

raised by a dissent in an earlier ruling against claims about the statute’s

196 _{See Balding v. Frito-Lay Inc., No. 84-1816, 758 F.2d 655 (9th Cir. 1985)}

(unpublished table decision).

197 _{See id.}

198 _{Stienstra, supra note 12, at 36.}

199 _{Rivera-Moreno v. INS, 213 F.3d 481, 487 (9th Cir. 2000) (Hawkins, J., concurring}

specially).

200 _{Referencing Alarcon-Duarte v. INS, No. 95-70452, 87 F.3d 1317 (9th Cir. 1996)}

(unpublished table decision). On June 14, 1996, Judge Alfred T. Goodwin wrote to the panel: “I . . . respectfully suggest that we are not really interpreting the new regulation, we are merely applying it.”

201 _{See United States v. Alexander, No. 75-1728, 538 F.2d 339 (9th Cir. 1976)}

coverage of “registered” physicians202 _{had been dispelled by a Supreme}

Court ruling203 _{which had noted the earlier case. Such an observation by}

the court of appeals judges should have been given greater notice through publication of the disposition. Likewise, publication might have been advisable when recent Supreme Court decisions disposed of a case dealing with a challenge to a transfer between prisons.204 _{Although the}

judges observed, “Recent Supreme Court decisions in Meachum v. Fano

(1976), and Montanye v. Haymes (1976), foreclose Rodriguez’s claim that his due process was violated by being denied counsel at his prison transfer hearing,” apparently a straight-forward matter not demanding publication, the panel found a potential problem with the district court’s dismissal of the prisoner’s claim about confinement in administrative segregation.205 _{In reversing and remanding for further proceedings, the}

judges went on to suggest how the new rulings might apply: “For due process to attach, Meachum and Montanye teach that an action by prison officials must deprive a prisoner of an interest in liberty rooted either solely in the Constitution or in applicable state law operating in conjunction with the Constitution.”206 _{Publication of that application}

would have aided development of circuit precedent.

Non-publication even of reversals regularly takes place when the result appears quite clear to the court and the ruling is a straightforward application of circuit precedent. From the early years of regular use of unpublished dispositions, one can find instances in which precedent was clear, so that the only question was whether the law had been properly applied. For example, publication was not necessary when the court of appeals, relying on a case from the prior year, reversed a continuing criminal enterprise (CCE) conviction and a firearms count dependent on it because the jury had not been properly instructed as to whether an individual was supervised by the defendant when, as a matter of law, that person was not within the defendant’s supervision.207 _{In this reversal, use}

of a memorandum disposition was acceptable because there was recently-issued circuit precedent and the court had also warned the parties of its applicability.And, in another instance, a panel, citing more

202 _{Id. (citing United States v. Rosenberg, 515 F.2d 190 (9th Cir. 1975) (MacKinnon}

J., dissenting)).

203 _{Id. (citing United States v. Moore, 423 U.S. 122 (1975)).}

204 _{See Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236}

(1976).

205 _{Rodriguez v. Cardwell, No. 75-3338, 549 F.2d 808 (9th Cir. 1977) (unpublished}

table decision).

206 _Id.

207 _{See United States v. Archer, No. 93-10753, 92 F.3d 1194 (9th Cir. 1996)}

than one circuit ruling on several of the points, used an unpublished disposition to reverse and remand when a district judge made a series of errors as to a defendant’s mental capacity.208 _{That the district judge was}

one with whom the circuit had had difficulty may also explain the non- publication; the judge had not changed over time, and a published opinion would not likely have had much effect.

Among the situations in which the application of existing law is at issue, so that unpublished dispositions are regularly used, are those in which the district court has wide discretion and the reviewing court finds no abuse of discretion. An early example was an affirmance of the district court’s dismissal of a case for plaintiff’s inactivity.209 _{When the}

court, finding no serious problem with a jury verdict, reverses the district court’s grant of a new trial as abuse of discretion and directs entry of judgment on the jury verdict, publication also is not necessary.210 _While

such cases could in some circumstances mark out the boundary of the trial judge’s discretion, making them appropriate for publication, in most instances involving district court discretion, there are no “boundary” issues because the resolution is not a close call.