Whether the proliferation of 'non-precedential' appellate court decisions violates Article III of the U.S. Constitution

QUESTIONS PRESENTED In the year 2000, Judge Richard S. Arnold in the Eighth Circuit noticed something was not quite right in the United States federal appellate courts. An aberration in the Anglo-American judicial tradition of precedent occurred. A judicial mutation referred to as "non-precedential" dispositions began to appear and populate the fed. eral appellate courts to the extent that twenty-two years after Judge Arnold noticed and called out the anomaly in Anastasoff v. United States,! approximately eighty percent of all appellate decisions throughout the appellate circuits are deemed "non-precedential." Judge in that year, authored an opinion in Anastasoff in which he declared “non-precedential” decisions to be unconstitutional under Article III of the Constitution of the United States " .because it purports to confer on the federal courts a power that goes beyond the judicial."? That decision was declared moot upon a technicality. Judge Arnold’s contention in his opinion has not yet come before the Supreme Court. However, in the last twenty-two years that have passed, Judge Arnold’s prophetic vision seems to have been on point, because the constitutional conundrum of the legitimacy of non-precedential dispositions has created a chaos of contradictions in the federal appellate circuits that has affected courts, members of the bar, and ultimately litigants.? 1 Anastasoff v. United States, 223 F.3d 898, 899, (Eighth Cir. 2000), : vacated as moot, 235 F.3d 1054 (Eighth Cir. 2000) (en banc). ; 2 Anastasoff v. United States, id. 3 Ahmed Bahgat, The Shockingly Common Use of Non-Precedential Opinions in Sixth Circuit Taser Litigation, ABA (2019). Available at: ; see also, Sarah E. Ricks, The . 1 | | | | } | In the present petition before the Court, the litigation of this aberration and the contradictions it has | caused needs urgent attention in the United States Supreme Court, Rinaldo Pierno, et al. v. Fidelity Brokerage Services LLC,4 plaintiff/appellant Rinaldo Pierno, challenged the Second Circuit’s summary order designation of “non-precedential” as unconstitutional and a violation of due process, and filed a motion to convert the summary order into a published opinion of citable precedent’ referencing Anastasoff v. United States (non-precedential opinions unconstitutional) and SEC v. Monterosso, F56 f3d 1326, 1329 (11t Cir. 2014) (granting SEC’s motion to publish a previously unpublished opinion). The Second Circuit denied Pierno’s motion on March 3, 2022. The dilemma of proliferating non-precedential dispositions and the contradictions they have caused in the federal appellate circuits requires the attention of the United States Supreme Court. This Petition for Writ of Certiorari places the constitutional issue of “non-prece, dential”" dispositions squarely before this Court. An instructive sampling of the dissonance in the federal circuit courts over non-precedential dispositions are the following. In 1972, a Fourth Circuit decision in Jones v. Superintendent, declared “ ...any decision by definition is precedent, and ...we cannot deny litigants and the bar the right to urge upon us what we have previously Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of Substantive Due Process State-Created Danger Doctrine in One Circuit, Washinton Law Review, Vol. 81, Nov. 2 (2006), 217. Available at: .ww.edu/wlr/vol8 V/iss2/2/, 4 Rinaldo B. Pierno v. Fidelity Brokerage Services LLC, No. 20-3711 (2022). 5 Citable precedent defined as: cases may be cited, but the weight given to the case is left open to the court. ii | done.”® In 2000, Judge Arnold participating in an Eighth Circuit panel authored the Anastasoff v. United States opinion that held Article III of the U.S. Constitution prohibits non-precedential decisions.7 The following year, the Ninth Circuit in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) authored by Judge Kozinski, refuted Anastasoff’s interpretation of precedent at common law