Schmier v. U.S. Court of Appeals for Ninth Circuit

• Decision Date: 01 February 2002
• Docket Number: No. 01-16105.,01-16105.
• Citation: 279 F.3d 817
• Parties: Michael SCHMIER, Plaintiff-Appellant, v. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT and Judicial Council of the Ninth Circuit, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.3d 817

Michael SCHMIER, Plaintiff-Appellant, v. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT and Judicial Council of the Ninth Circuit, Defendants-Appellees.

No. 01-16105.

United States Court of Appeals, Ninth Circuit.

Submitted November 13, 2001.^*

Filed February 1, 2002.

Kenneth J. Schmier, Emeryville, CA, for the plaintiff-appellant.

Douglas N. Letter and Kathleen A. Kane, U.S. Department of Justice, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-00-04076-VRW.

Before: FRIEDMAN, Senior Circuit Judge, ROETTGER, Senior District

Judge, and MICHEL, Circuit Judge.^**

MICHEL, Circuit Judge.

Michael Schmier, an attorney practicing employment law in the California federal courts, appeals from a decision by the United States District Court for the Northern District of California holding that, as a matter of law, Schmier had failed to establish standing based on a complaint alleging that the Circuit Rules prohibiting citation to unpublished opinions violate his constitutional rights. Because Schmier's complaint does nothing more than allege a speculative and abstract interest in having these Circuit Rules invalidated, and because nothing in the complaint indicates that these rules have somehow caused an injury personal to Schmier, we affirm.

I.

In November 2000, Schmier sued the United States Court of Appeals for the Ninth Circuit and the Judicial Council for that Circuit, alleging that certain rules they had promulgated, especially Circuit Rule 36-3, violate Schmier's rights under Article III of the Federal Constitution, along with Schmier's rights under the First Amendment, the Due Process and Equal Protection Clauses, and under the separation-of-powers doctrine. Circuit Rule 36-3 essentially states that neither parties nor courts in the Ninth Circuit may cite to an unpublished disposition as precedent, though they may cite to unpublished dispositions for purposes of establishing, e.g., the applicability of collateral estoppel, res judicata or law of the case. The current version of this Rule will expire by its own force on December 31, 2002, unless the Ninth Circuit votes to retain it permanently. Regardless, even if that Rule does expire, the version of the Rule that it temporarily replaced (and that will presumably go into effect once or if the current Rule expires) similarly states that neither parties nor courts in the Ninth Circuit may rely on unpublished orders or opinions as precedent. See 9th Cir. R. 36-3.

Liberally construed, Schmier's complaint alleges that, as an attorney who practices in the courts of the Ninth Circuit and a citizen "beneficially interested ... and personally concerned" in seeing the Ninth Circuit "perform their duties under the law," he is entitled to injunctive relief that would require (among other things) recognition by all the courts in the Ninth Circuit that all their orders and opinions, published or unpublished, carry the force of precedent, contrary to the dictates of the Circuit Rules. Further, the complaint alleges that the Ninth Circuit's "constitutional violations" were "continuing daily and [were] causing grievous harm to numerous litigants, including" Schmier. Because of these Circuit Rules, the complaint alleges, "people cannot know the manner in which" the courts were applying "their enacted laws," meaning the Ninth Circuit had thereby "sever[ed] the mechanism by which the public can monitor the application of law." Before the district court on oral argument, Schmier added that, without this "mechanism," the public could not know whether it should petition the representative branches of government, e.g., the Congress, to overrule or repeal a particular court decision.

The Ninth Circuit, represented by the Department of Justice, moved to dismiss Schmier's complaint under Fed.R.Civ.P. 12(b)(6), arguing that he had failed to allege a legally recognized injury and had therefore failed to establish constitutional standing. At oral argument, the district court asked Schmier's counsel (his brother, Kenneth) no less than three times whether Schmier could allege that he had cited an unpublished decision in a case and either was personally sanctioned for doing so; or tried citing that decision to a court in the Ninth Circuit and the court's failure to recognize that unpublished disposition adversely affected his client's interests. (See, e.g., Tr. at 3, 9, 18-19.) Schmier's counsel initially answered either with a non-responsive analysis or else responded with another question. Ultimately, however, counsel conceded that Schmier had not done as the district court suggested. (See Tr. at 9, 18-19.)

The district court granted the Ninth Circuit's motion and dismissed Schmier's complaint with prejudice. In so doing, the court reasoned that Schmier had indeed failed to allege any facts showing that he himself had suffered a direct or immediate injury as a result of the Circuit Rules prohibiting citation to unpublished dispositions. (Op. at 6.) Specifically, according to the court, Schmier's failure to assert that he had tried citing an unpublished disposition and that he had suffered some tangible harm as a result thereof precluded him from establishing the constitutional standing required of every plaintiff. (See Op. at 7.)

On appeal, Schmier argues (as he did before the district court) that he established standing at the pleading stage of this suit because the Circuit Rules at issue "deny[him] the concrete body of law upon which to base the opinions he is asked to give in the course of his trade" as a lawyer. (Appellant's Br. at 29.) In addition, Schmier alleges a "clear, present, and substantial right to the performance of [the Ninth Circuit's] duties" and that, at a minimum, the district court should have denied the motion to dismiss, allowed the case to proceed to discovery and then (and only then) addressed the standing issue at the summary judgment stage. (See Appellant's Br. at 29.) As further support of his alleged standing, Schmier notes that the Ninth Circuit has recently issued two opinions indicating that "it is serious about sanctioning attorneys who cite unpublished opinions." (Reply at 6.) The Ninth Circuit, in response, counters that not only does Schmier lack standing; but also that a recent (and published) decision from the Ninth Circuit forecloses his constitutional claims on the merits, see Hart v. Massanari, 266 F.3d 1155 (9th Cir.2001).

II.

We review questions of standing de novo, accepting as true all the material allegations in Schmier's complaint and construing the complaint in his favor. See Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir.2000). Although we read the complaint in a light most favorable to the non-moving party, "`conclusory allegations of law and unwarranted inferences'" cannot defeat an otherwise proper motion to dismiss. See Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. California, 159 F.3d 1178, 1181 (9th Cir.1998) (quoting Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.1998)).

III.

Having reviewed Schmier's complaint, we agree that he has failed to allege a cognizable injury under the standing doctrine. As the Supreme Court has repeatedly stated, the "core" or "bedrock" elements of standing require that a plaintiff establish a(1) legally recognized injury, (2) caused by the named defendant that is (3) capable of legal or equitable redress. E.g., Raines v. Byrd, 521 U.S. 811, 818-19, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (noting the "bedrock requirement" of standing generally and the "strict compliance" of showing a legally recognized injury specifically); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (identifying the three "core component[s] of standing"). The party seeking to invoke the jurisdiction of the federal courts has the burden of alleging specific facts sufficient to satisfy these three elements. See Raines, 521 U.S. at 818, 117 S.Ct. 2312 (plaintiffs must satisfy standing requirements "based on the complaint...."); Whitmore v. Arkansas, 495 U.S. 149, 155-56, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). "A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing." Whitmore, 495 U.S. at 155-56, 110 S.Ct. 1717.

Contrary to Schmier's assertions, moreover, the injury that a plaintiff alleges must be unique to that plaintiff, one in which he has a "personal stake" in the outcome of a litigation seeking to remedy that harm. See Raines, 521 U.S. at 818-19, 117 S.Ct. 2312; City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In addition, the plaintiff must have sustained a "concrete" injury, "distinct and palpable ... as opposed to merely abstract." Whitmore, 495 U.S. at 155, 110 S.Ct. 1717; accord Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (discussing the standing requirement for a "concrete and particularized" injury). And that injury must have actually occurred or must occur imminently; hypothetical, speculative or other "possible future" injuries do not count in the standings calculus. See Whitmore, 495 U.S. at 155, 110 S.Ct. 1717; accord Lujan, 504 U.S. at 560, 112 S.Ct. 2130; Allen v. Wright, 468 U.S. at 751, 104 S.Ct. 3315; Lyons, 461 U.S. at 101-02, 103 S.Ct. 1660. Though these standing principles do not readily lend themselves to "mechanical application," Allen v. Wright, 468 U.S. at 751, 104 S.Ct. 3315, nor do they require an "ingenious academic exercise in the conceivable," see Lujan, 504 U.S. at 566, 112 S.Ct. 2130.

In this case, we have little difficulty in applying these principles and concluding that Schmier has failed to allege a legally cognizable injury, as required by the standing doctrine. First, Schmier has not alleged a violation...