Anastasoff v. U.S.

• Decision Date: 28 November 2000
• Docket Number: No. 99-3917EM,99-3917EM
• Citation: 235 F.3d 1054
• Parties: (8th Cir. 2000) Faye Anastasoff, Appellant, v. United States of America, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1054

235 F.3d 1054 (8th Cir. 2000)

Faye Anastasoff, Appellant, v. United States of America, Appellee.

No. 99-3917EM

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: November 28, 2000

Filed: December 18, 2000

On Appeal from the United States District Court for the Eastern District of Missouri.

Before WOLLMAN, Chief Judge, HEANEY, McMILLIAN, RICHARD S. ARNOLD,BOWMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,MURPHY, and BYE, Circuit Judges, en banc.

RICHARD S. ARNOLD, Circuit Judge.

This is a tax case. The appellant, Faye Anastasoff, filed suit for a refund in the claimed amount of $6,436.00. The United States asserted that the plaintiff's claim for a refund had been untimely. The District Court agreed, and we affirmed. Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000).

The panel of this Court that initially heard the case held that the administrative claim for refund was not timely. This position, which was urged upon us by the government, depended upon interpretation of the relevant statutes, including 6511(b)(2) and 7502(a) of the Internal Revenue Code. The United States cited to the panel an unpublished opinion of this Court, Christie v. United States, No. 91-2375MN (8th Cir., March 20, 1992) (per curiam). The panel held itself bound by Christie, believing that our local Rule 28A(i), which specified that unpublished opinions have no precedential effect, was unconstitutional, as purporting to confer upon the courts a power that went beyond the "judicial," within the meaning of Article III of the Constitution.

While the case was under advisement by the panel, the Second Circuit decided Weisbart v. United States, 222 F.3d 93 (2000), which was in direct conflict with Christie. Our panel, believing itself bound by Christie as authoritative in-Circuit precedent, noted Weisbart, but considered itself without authority to decide whether the Weisbart rule was preferable to the rule of Christie. That decision, the panel thought, would be only for the Court en banc, which, unlike panels, does have the authority to overrule previous opinions.

The taxpayer then filed a petition for rehearing en banc, asserting that the panel's constitutional holding was in error, and that, on the merits, this Court should abandon Christie. In response to the petition for rehearing en banc, the United States informed us that it intended to pay the taxpayer's claim in full, with interest at the statutory rate. Accordingly, the government argued, the case had become moot and should be dismissed on that ground. Thereafter, the government did two more things that are relevant. First, it did in fact pay the plaintiff taxpayer the full amount of her claim, with interest, in the total sum of $11,437.32. Second, the Internal Revenue Service issued a document styled Action on Decision, AOD 2000-09, 2000 WL 1711554 (Nov. 13, 2000). This AOD announces the acquiescence of the Internal Revenue Service in the rule of Weisbart, and, necessarily therefore, the Service's abandonment of its previous position based on Christie.

Has the case become moot by reason of these events subsequent to the filing of the panel opinion? The taxpayer says no. In her view, the case is not moot for two main reasons. First, the issue of the status of unpublished opinions is of great importance to the bar and bench. Second, the taxpayer claims that she is entitled to an award of attorneys' fees under 26 U.S.C. 7430, a claim that has not yet been decided, and that the existence of this claim, which presumably the government will dispute, prevents the case from becoming moot.

We think that the case is moot, as argued by the government. There is no longer any dispute over whether the taxpayer will get her money. She has received it in...