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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10361
_______________
CHARLES ETTA WILLIAMS,
Plaintiff-Appellant,
VERSUS
DALLAS AREA RAPID TRANSIT,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
June 26, 2001
ON PETITION FOR REHEARING EN BANC
(Opinion 2/22/01, 5 Cir., 2001, 242 F.3d 315)
Before POLITZ, SMITH, and PARKER,
members o f the court, and a majority of the
Circuit Judges.
judges who are in regular active service not
having voted in favor (see FED. R. APP. P. 35
PER CURIAM:
and 5TH CIR. R. 35), the petition for rehearing
en banc is DENIED.
Treating the petition for rehearing en banc
as a petition for panel rehearing, the petition
for panel rehearing is DENIED. The court
having been polled at the request of one of the

JERRY E. SMITH, Circuit Judge, with
Anderson had conferred on it less than two
whom JONES and DeMOSS,
years earlier.
Circuit Judges, join, dissenting from the
denial of rehearing en banc:
What is the hapless litigant or attorney, or
for that matter a federal district judge or mag-
The refusal of the en banc court to rehear
istrate judge, to do? The reader should put
this case en banc is unfortunate, for this is an
himself or herself into the shoes of the attorney
opportunity to revisit the questionable practice
for DART. That client is told in May 1999, by
of denying precedential status to unpublished
a panel of this court in Anderson, that it is
opinions. Although I believe the panel reached
immune, on the basis of a "comprehensive and
a correct result, based primarily on the test set
well-reasoned opinion." Competent counsel
forth in Clark v. Tarrant County, 798 F.2d
reasonably would have concluded, and advised
736 (5th Cir. 1986), I respectfully dissent from
his or her client, that it could count on
the denial of rehearing en banc, which would
Eleventh Amendment immunity.
have given this court an opportunity to
examine the question of unpublished opinions
Then, in March 2000, in the instant case, a
generally, an issue that is important to the fair
federal district judge, understandably citing
administration of justice in this circuit.
and relying on the circuit's decision in An-
derson, holds that "[i]t is firmly established
I.
that DART is a governmental unit or instru-
Consider what has occurred in this case. In
mentality of the state of Texas." In February
Anderson v. DART, 180 F.3d 265 (5th Cir.)
2001, however, a panel, containing one of the
(per curiam) (unpublished) (table), cert. de-
judges who was on the Anderson panel, re-
nied, 528 U.S. 1062 (1999), a panel of this
verses and tells DART that, on the basis of
court affirmed, "for essentially the reasons
well-established Fifth Circuit law from 1986, it
stated by the district court in its comprehen-
has no such immunity. One can only wonder
sive and well-reasoned opinion," the judgment
what competent counsel will advise the client
in Anderson v. DART, No. CA3:97-CV-1834-
now.
BC, 1998 U.S. Dist. LEXIS 15493 (N.D. Tex.
Sept. 29, 1998), in which the magistrate judge
II.
had held that "DART is a political subdivision
Fifth Circuit Rule 47.5.4 specifies that
of the state of Texas, and is therefore immune
"[u]npublished opinions issued on or after Jan-
from suit under the Eleventh Amendment."
uary 1, 1996, are not precedent, except under
Id. at *24.
the doctrine of res judicata, collateral estoppel
or law of the case . . . ." This court's primary
If the Anderson panel had published its
asserted justification for issuing unpublished
opinion, it would have been binding on the
opinions is efficiency.1 Indeed, effi
panel in the instant caseSSWilliamsSSand the
result here would have been different. Based,
however, on the mere fortuity that the Ander-
1 See 5TH CIR. R. 47.5.1 ("The publication of
son panel decided not to publish, our panel in
opinions that merely decide particular cases on the
Williams was free to disagree with Anderson
basis of well-settled principles of law imposes
and to deny to DART the same immunity that
needless expense on the public and burdens on the
(continued...)
2

ciency may be the only justification for the
published case does nothing new, an older case
practice of issuing unpublished opinions, but
easily can be cited for the same proposition,
one that cannot be gainsaid. Danny J. Boggs
rendering citation to the unpublished opinion
& Brian P. Brooks, Unpublished Opinions &
unnecessary.
the Nature of Precedent, 4 GREEN BAG 2D 17,
19-21 (2000).
To the contrary, however, there are opin-
ions that, though unpublished, do establish a
The justification for refusing to confer pre-
new rule of law or apply existing law to dis-
cedential status on such opinions is more tenu-
tinct facts. In Christie v. United States, No.
ous. It maybe that, when this court pro-
91-2375MN (8th Cir. Mar. 20, 1992) (per cur-
mulgated rule 47.5 in 1995, the relative un-
iam) (unpublished), the court, addressing the
availability of unpublished opinions rendered
issue as res nova, held that the "mailbox rule"
their use as precedent fundamentally unfair.
does not apply to refund claims against the
Today, however, that proposition is untenable:
Internal Revenue Service. In Anastasoff v.
"Between Lexis and Westlaw, Internet sites
United States, 223 F.3d 898 (8th Cir.), vacat-
maintained by universities and some of the cir-
ed as moot, 235 F.3d 1054 (8th Cir. 2000) (en
cuit courts of appeals, and networks of at-
banc), another panel of the Eighth Circuit
torneys practicing in particular fields, it is the
faced the same issue.
rare opinion that is not disseminated for mass
consumption." Boggs & Brooks, supra,
In Anastasoff, the taxpayer argued that
at 18.2
Christie, the only Eighth Circuit decision on
point, should be ignored because of its unpub-
The primary justification for refusing to
lished disposition. The court refused to over-
grant unpublished opinions precedential
look Christie, however, declaring that the cir-
weightSSat least in this circuitSSis, however,
cuit's local rule restricting the precedential
that an unpublished opinion will not "in any
value of unpublished opinions is unconstitu-
way interest persons other than the parties to
tional. Id. at 899. As I will discuss, the
[that particular] case," because the opinion
court's holding on the constitutional question
neither establishes a new rule of law, modifies
is at least arguable; Christie, moreover, is in-
an existing rule of law, applies an existing rule
structive as a textbook example of an unpub-
to distinct facts, nor concerns any issue of
lished opinion that in fact does announce a
significant public interest. 5TH CIR. R. 47.5.1.
new rule of law. As I have explained, the
Thus, at least theoretically, because an un-
same phenomenon occurred in the instant case.
Empirical evidence suggests that cases such
as Christie and Anderson are more common
1(...continued)
than one might think. One study of un-
legal profession.").
published opinions found "a surprising number
2
of reversals, dissents, and concurrences. . . .
On the other hand, there are substantial ar-
suggest[ing] that panels authoring unpublished
guments in favor of making unpublished opinions
opinions reach some results with which other
non-precedential. See, e.g., Alex Kozinski & Ste-
phen Reinhardt, Please Don't Cite This! Why We
reasonable judges would disagree. . . .
Don't Allow Citation to Unpublished Disposi-
[F]ailing to give unpublished opinions prece-
tions, CAL. LAWYER, June 2000, at 43.
3

dential effect raises the very specter described
In Anastasoff, Judge Richard Arnold, writing
by the Eight Circuit: that like cases will be
for the panel that declared the practice un-
decided in unlike ways . . . ." Deborah Jones
constitutional, questioned whether Article III's
Merritt & James J. Brudney, Stalking Secret
"judicial power" includes the power to
Law: What Predicts Publication in the United
disregard precedent, citing several historical
States Courts of Appeals, 54 VAND. L. REV.
bases for the conclusion that, when the Con-
71, 119 (2001) (citing Anastasoff, 223 F.3d at
stitution was framed, "[t]he duty of courts to
901, 905).3 In the first half of 2001, this
follow their prior decisions was understood to
circuit has declined to publish at least four
derive from the nature of the judicial power
opinions in which a judge dissented,4 indicating
itself and to separate it from a dangerous union
that at least one of our number felt that each of
with the legislative power," Anastasoff, 223
those cases was not an easy application of
F.3d at 930, despite the fact that "[b]efore the
existing law to indistinguishable facts.
ratification of the Constitution, there was
almost no private reporting and no official re-
III.
porting at all in the American states," id. The
For this reason, among others, the issuance
panel therefore decided that Article III does
of unpublished, non-precedential opinions re-
not empower a court to ignore any of its prior
cently has come under more intense scrutiny.5
cases, unpublished or not. Id.
Anastasoff has generated substantial con-
3 See also Boggs & Brooks, supra, at 20-21
troversy, and its historical research and con-
("As an empirical matter, plenty of unpublished
clusions have been criticized.6 Even if one dis-
decisions have been accepted for review and re-
agrees that non-precedential opinions violate
versed by the Supreme Court, demonstrating that
the Constitution, however, the issue is close
it is difficult to make prospective decisions about
enough for this court to give it en banc
which legal issues are `easy' in the abstract.").
consideration.
4 See, e.g., United States v. Vazquez-Hernan-
IV.
dez, No. 99-51159 (5th Cir. Apr. 18, 2001) (per
curiam) (unpublished); United States v. Thompson,
In addition to the constitutional issue, the
No. 99-41007 (5th Cir. Apr. 9, 2001) (un-
practice of refusing to recognize unpublished
published); Nix v. Cain, No. 99-30139 (5th Cir.
opinions as precedent raises important pru-
Feb. 22, 2001) (per curiam) (unpublished); Lewis
dential questions. As I have said, one assump-
v. FDIC, No. 99-60412 (5th Cir. Feb. 2, 2001)
tion on which the practice is basedSSthat such
(unpublished).
opinions create no new lawSSis dubious.
Moreover, in this particular case, one must
5 See, e.g., Anastasoff, 223 F.3d at 899-900;
A.B. 2404, 1999-00 Assem., Reg. Sess. (Cal.
2000) (requiring all state supreme court and ap-
pellate opinions to be available for private publi-
5(...continued)
cation and to "constitute precedent under the doc-
opinions, and compiling sources).
trine of stare decisis the same as opinions published
in the official reports."); see generally Merritt &
6 For a discussion of the criticism and a defense
Brudney, supra, at 72-74 & nn.5-7 (describing the
of Judge Arnold's conclusions, see Polly J. Price,
debate over unpublished, non-precedential
Precedent and Judicial Power After the Founding,
(continued...)
42 B.C. L. REV. 81, 82-84, passim (2001).
4

question the fundamental fairness of having
two opinions from the same court, one giving
DART Eleventh Amendment immunity and the
other, less than two years later, taking that
immunity away.
The law is supposed to inform the choices
of potential litigants. How can this circuit's
decisions do so, if they carry no predictive
effect?
Moreover, the justification for unpublished
opinionsSSthat, as a matter of efficiency, the
court should not publish redundant opin-
ionsSSprovides no support for the proposition
that such opinions should carry no precedential
weight. If the opinion is a mere restatement of
existing law (as it must be, if it is accorded
unpublished status), what is the harm in
viewing it as precedent?
There are powerful arguments both for and
against the policy of giving precedential effect
to unpublished opinions. Given the attention
garnered by Anastasoff, both before and after
that litigation was discontinued for mootness,
and given the untoward inconsistency in result
that I have pointed out from our circuit, this
matter surely is important enough for the court
to reconsider en banc.
Even without en banc consideration, I hope
the court will reconsider the efficacy of rule
47.5.4 Because of its refusal to do so in the
form of an en banc rehearing of the Williams
7
case, I respectfully dissent from the denial of
(...continued)
rehearing en banc.7
question of Eleventh Amendment immunity for
governmental entities. Our caselaw is hopelessly
confused on that issue, and frequently it is difficult
to tell which of our opinions is binding caselaw.
7 Although the broad issue of how to handle
See, e.g., Southwestern Bell Tel. Co. v. City of El
unpublished opinions is the main reason to grant en
Paso, 243 F.3d 936 (5th Cir. 2001); Reynolds v.
banc review, there also is a need to reconcile this
DART, No. Civ. A. 3:98-CV0982M, 2000 U.S.
court's jurisprudence on the often-recurring
Dist. LEXIS 15536, at *1 (N.D. Tex. Oct. 20,
(continued...)
2000).
5