Upon Further Review

Article III of the U.S. Constitution limits the jurisdiction of federal courts to cases and controversies. Over the years, federal courts have construed the "case or controversy" requirement to encompass a number of subsidiary requirements. The case must not be moot. The controversy to be decided must be ripe for decision. So-called "political questions" are beyond the federal judicial power. And federal courts will not issue advisory opinions.

Traditionally, an advisory opinion was understood to represent a request that a court rule on the lawfulness of something before an actual case challenging that thing’s lawfulness featuring adverse parties was brought before the court. For example, the legislative branch may be considering whether to enact a statute that may present constitutional concerns. Some legislators may wish to obtain a court’s ruling on whether the proposed legislation could withstand constitutional challenge if it were to be enacted. That scenario would present a classic instance of an advisory opinion.

Similarly, two private companies may be considering whether to enter into a contract containing certain provisions of doubtful legal validity. Those parties might prefer to obtain a court’s ruling in advance concerning whether the contractual provisions in question could lawfully be enforced if they were to enter into the contract. Such a case would present another example of parties asking a court to issue a prohibited advisory opinion.

A distinction that is sometimes difficult to appreciate is the difference between dicta contained in a court’s opinion and an advisory opinion. Dicta is ordinarily defined to mean statements in a court’s opinion that are not necessary to the court’s actual holding. Thus, in an opinion, a court might draw a distinction between the outcome in the case actually before the court and a different outcome that the court says it would reach in a hypothetical case featuring other facts. Or, in dicta, a court might say it would have reached a different outcome in the case if the party taking the appeal had advanced a specific argument that the party is not in fact raising.

One difference between ordinary dicta and an advisory opinion is that dicta is commonly found in cases over which the issuing court is properly exercising jurisdiction, whereas a case that was merely seeking an advisory opinion would be entirely outside of the judicial power that the issuing court is authorized to exercise. Also, a litigant that is seeking an advisory opinion is looking to obtain a decision that will bind the courts and that litigant in the future. By contrast, dicta is defined as a nonbinding expression of a judicial opinion. When a later case actually arises presenting the very issue that an appellate court has previously opined about in dicta, the appellate court has the option to ignore its previous dicta if the appellate court believes that it was ill-informed or incorrect.

The issue of advisory opinions came to mind in late November when the U.S. Court of Appeals for the Third Circuit issued a published opinion denying a petition for writ of mandamus that was challenging a Pittsburgh-based federal district judge’s order imposing strict time limits on the presentation of evidence at a forthcoming trial. A mandamus proceeding is an original action filed in an appellate court to challenge a trial court’s decision in a case that might eventually come before that same appellate court following a final decision. However, the rules governing the availability of mandamus review have imposed severe limits on its availability.

In last month’s Third Circuit ruling, the unanimous three-judge panel concluded that the requirements for mandamus jurisdiction were not satisfied, and consequently the Third Circuit denied the petition. Nevertheless, the Third Circuit panel issued a footnote to its opinion noting that neither of the opposing parties in the trial court believed that the strict time limits for the presentation of evidence in the trial court were fair. The Third Circuit panel also explained that it had serious doubts about the fairness of the time limits and expressly encouraged the trial court to reconsider those time limits lest it become necessary, in any post-judgment appeal challenging the fairness of those time limits, for the Third Circuit to order a new trial at which those time limits would not apply.

The Third Circuit’s ruling in this case, captioned In re Baldwin, No. 11-4447 (3d Cir. Nov. 26, 2012), is notable because the panel’s footnote, which criticized the district court’s time limits order and indicated that the order likely constituted reversible error that would necessitate a new trial, appears to represent a classic advisory opinion. Now, I am not intending to criticize the Third Circuit judges on this panel for trying to eliminate the occurrence of a trial whose results cannot withstand later appellate review. All that I am pointing out is that it is rather unusual for an appellate court to first hold that it lacks jurisdiction to consider and rule on the merits of a petition for writ of mandamus but then to nevertheless explicitly set forth its views on the legality of the very order that was the subject of the mandamus petition whose merits the court had already concluded the court could not reach.

What is perhaps even more interesting is that because the Third Circuit denied the mandamus petition, the district judge presiding over the case retains the power to completely disregard the Third Circuit’s footnote recommending that the district judge reconsider the time limits order. Moreover, because the footnote by the Third Circuit’s own admission constituted the appellate court’s expression of opinion on an issue that was not properly before that court for decision, whatever later Third Circuit panel hears and decides any appeal from the trial court’s refusal to set aside the time limits order will not be bound by the earlier panel’s views on the merits of that order.

To be sure, most federal district judges would easily get the message and simply elect to follow the admonition contained in the footnote of the Third Circuit’s recent ruling denying the writ of mandamus. But U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania, whose time limits order the Third Circuit was asked to review, has developed such a frosty relationship with the Third Circuit over the years that I would not be entirely surprised if he decided not to abide by a higher court’s suggestion of how he should proceed contained in a decision in which the Third Circuit, by its own admission, lacked jurisdiction to rule on the merits.

Indeed, there might even be entirely valid reasons why a district judge would ignore the Third Circuit under these circumstances. The district judge’s familiarity with the case is unsurpassed, and the Third Circuit cannot develop an equivalent familiarity when reviewing a mandamus petition seeking review of an otherwise non-final order. Thus, it could turn out that the trial judge was absolutely correct concerning how much time each party needed for the presentation of its case. Moreover, it may be very difficult for the parties to create the necessary appellate record to demonstrate that more time was necessary, especially if the trial judge is not willing to cooperate in the creation of such a record.

Rulings from federal appellate courts that deny requests for mandamus but nevertheless proceed to hint at the appellate court’s likely view of the merits of the order being challenged are perhaps the most frequent form of appellate advisory opinions, but that does not make them proper, even though they are issued with all good intentions. It will be interesting to see what happens if Schwab adheres to his time limits order and later issues an opinion offering a compelling case for why those time limits did not encroach on the rights of the parties. •

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate blog at www.howappealing.law.com.