Why Are There No Federal Writs of Erasure?

Eric Pearson, in Foley & Lardner's Wisconsin Appellate Law blog, discusses this recent exchange that took place between Judge Frank Easterbrook and counsel for the appellant during oral argument in O'Keefe v. Chisholm (Bloomberg News has background on the case here):

Counsel: I would request the Court please vacate, in its entirety, the district court’s basis for the ruling. However this Court gets to that issue, if it perceives it needs to. This district court ruling has left a considerable stain, and we do not wish to have that… 

Easterbrook, J.: What are you asking for concretely? 

Easterbrook, J: Do you want us to issue a writ of erasure? 

Counsel: Well… 

Easterbrook, J.: Tell the district court it has to say something else? 

Easterbrook, J.: When we review a case on appeal, we will issue our own opinion. But we don’t go about erasing district court opinions. That seems to be what you want us to do. 

Counsel: Well…what I was thinking, Your Honor, was the vacation of that opinion. 

Easterbrook, J.: We do not vacate opinions. We review judgments.

Asking for a vacation of a "basis for the ruling" in front of a panel containing Judge Easterbrook is a bad idea in light of prior decisions that Judge Easterbrook has authored. Judge Easterbrook has repeatedly refused requests to vacate opinions of district courts, labeling these requests as actions for "writs of erasure."

But why are there no writs of erasure? The language of the All Writs Act (28 U.S.C § 1651) suggests that federal courts have broad powers to issue a variety of writs:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

In light of this broad language, I would expect Judge Easterbrook to give some reason for why writs of erasure are not permitted. But many of his recent opinions on the subject simply contain a conclusory statement that the Seventh Circuit does not issue writs of erasure. See, e.g., Tara Gold Resources Corp. v. S.E.C., 678 F.3d 557, 560 (7th Cir., 2012) (noting, in the context of a request to vacate a letter sent to a business by the Securities and Exchange Commission that "[t]he judicial arsenal does not include a writ of erasure that blots documents from existence."), United States v. Zingsheim, 384 F.3d 867, 870 (7th Cir. 2004) ("A Writ of Erasure is not among those remedies that are “agreeable to the usages and principles of law” and authorized by 28 U.S.C. § 1651(a), the All-Writs Act.").

After some searching, I found some other opinions by Judge Easterbrook that shed light on why he rejects writs of erasure. But after I reviewed those opinions, I was still left wondering whether his blanket rejection of these writs is truly justified. In the remainder of this post, I explore the reasons for rejecting writs of erasure and close with some brief remarks on why these reasons may not sufficiently a blanket rule against such writs.

Article III Standing and Uncontested Judgments

In some contexts, the refusal to issue a writ of erasure makes sense as a matter of standing. Parties litigating a case in federal court must have standing under Article III of the Constitution, which requires the existence of a "case or controversy" between the parties. One element that is required for Article III standing is that a party has suffered some harm, or will suffer some imminent harm. This is known as the "actual injury" requirement.

In United States v. Accra Pac, Inc., 173 F.3d 630, 632 (7th Cir. 1999), Judge Easterbrook explained that parties cannot appeal favorable judgments simply to undo unfavorable language in the judgment because that unfavorable language is not enough of a harm to give rise to a case or controversy:

Unwelcome language in a substantively favorable decision is not the kind of adverse effect that meets the requirement of actual injury. CH2M Hill Central, Inc. v. Herman, 131 F.3d 1244 (7th Cir.1997); Chicago Board of Trade v. SEC, 883 F.2d 525 (7th Cir.1989). Likewise a litigant may not appeal from unfavorable statements in a judicial opinion, if the judgment was favorable. California v. Rooney, 483 U.S. 307, 311–14, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987); Grinnell Mutual Reinsurance Co. v. Reinke, 43 F.3d 1152 (7th Cir.1995); Abbs v. Sullivan, 963 F.2d 918 (7th Cir.1992); Bolte v. Home Insurance Co., 744 F.2d 572 (7th Cir.1984). A court of appeals reviews judgments, not opinions. Someone who seeks an alteration in the language of the opinion but not the judgment may not appeal; likewise if the document is an administrative decision rather than a judicial one.

Judge Easterbrook went on to note that there were practical reasons to avoid vacating opinions, noting that even prevailing parties often feel that the language in an opinion could be better. He points out that this explains why courts of appeals do not issue "Writs of Erasure to change language in district judges' opinions, when the judgments are uncontested."

While this reasoning may apply to cases where a party appeals a favorable judgment, it does not seem to apply to the facts of O'Keefe, where the appellant is appealing the lower court's entry of an injunction against the appellant. The appellant's argument is not that the lower court opinion could have been better, but that it wrong -- so wrong that it should be erased.

Because his reasoning in Accra Pac does not apply to the scenario in O'Keefe, Judge Easterbrook would need some other basis for rejecting a request for a writ of erasure.

The Historic Value of a Published Opinion

Judge Easterbrook has emphasized the historical importance of lower court opinions. In Matter of Memorial Hospital of Iowa County, Inc., 862 F.2d 1299 (7th Cir. 1988), Judge Easterbrook remarked that "[T]here is no common law writ of erasure," and went on to argue that an opinion of a lower court -- even if contradicted by an eventual settlement by the parties -- should not be vacated on appeal, since that lower opinion may be useful for historical reference in later cases:

When a clash between genuine adversaries produces a precedent, however, the judicial system ought not allow the social value of that precedent, created at cost to the public and other litigants, to be a bargaining chip in the process of settlement. The precedent, a public act of a public official, is not the parties' property. We would not approve a settlement that required us to publish (or depublish) one of our own opinions, or to strike a portion of its reasoning.

Judge Consuelo Callahan agreed with Judge Easterbrook's reasoning in her concurrence in Animal Legal Defense Fund v. Veneman, 490 F.3d 725, 731 (9th Cir. 2007), and went farther than Easterbrook in stating the value of precedent by noting:

An important aspect of maintaining the public trust is to assure that the judicial process is transparent. Eradicating historical precedent is antithetical to that goal.

Both of these opinions reject writs of erasure because these writs would effectively eliminate prior opinions and thereby remove them from the historical record of courts' proceedings.

It is important to note that both Memorial Hospital and Animal Legal Defense Fund involved situations where the parties requested a vacation of an opinion after a settlement. To some degree, the logic of the arguments against vacating the lower opinion may still apply to cases where the parties have not yet settled a case. But it is worth noting that the reasoning of Memorial County does not cleanly transfer to cases where a party is challenging an unfavorable ruling on appeal.

If a party is seeking to overturn a decision below, then the appellate court may end up reversing the opinion if it agrees with the party. At that point, any portion of the lower opinion that is inconsistent with the appellate court's opinion is no longer good precedent. While it may be helpful to have the case on record in order to set the context for the appellate court's decision, it is not clear how much "social value" the lower opinion will have beyond that limited role.

Are These Reasons Enough to Justify Prohibiting Writs of Erasure?

As I have already noted, a lack of Article III standing does not apply to situations where parties contesting the outcome of a lower court opinion are seeking the vacation of that opinion. And while an opinion may be valuable for later litigants, this will not always be true in situations where a party is challenging an adverse ruling on appeal, rather than requesting an appellate court to vacate the judgment in light of a settlement.

The reasons that Judge Easterbrook advances for avoiding writs of erasure are worth noting, and are fairly convincing in their factual contexts. But I am not sure if these reasons are enough to justify a blanket prohibition on writs of erasure. There may be some situations where a writ of erasure is warranted, and perhaps even "agreeable to the usages and principles of law."

Consider, for example, the California Supreme Court's practice of depublication of decisions. Under California Rule of Court 979, the California Supreme Court has the power to order a lower court to revert its published opinion to unpublished status so that the opinion cannot be cited as precedent. California Practice Guide, Civil Appeals and Writs, § 11:180.1 notes the absence of any criteria for depublication, but suggests that significant factors the California Supreme Court considers include whether the Justices believe the decision was wrong and whether the decision would be misleading if left in place as published precedent. While critics like Judge Easterbrook might confidently dismiss any notion of courts ever employing a writ of erasure, the California depublication rule seems quite similar to that writ.

California's rule is certainly not without its critics. Joseph Grodin writes about this practice, and criticism of this practice in this article, though he concludes that depublication is preferable to leaving an opinion in place that would cause errors. Stephen Barnett has additional criticism in this article. Both Grodin and Barnett echo the themes of the cases discussed above in that they both argue that depublication of cases raises concerns that the California Supreme Court is rewriting history. Barnett in particular emphasizes that depublication may threaten the transparency of the judicial process.

From my (admittedly limited) experience with California law, I am inclined to agree with Grodin's point that while depublication may be problematic, there are instances where depublication is a better option than leaving misleading precedent in place. In a particularly vexing research assignment from quite a while ago, I ended up discovering a strange situation where a California Court of Appeal decision had been published without reference to a prior, contradictory California Supreme Court case. Moreover, for some unknown reason, the California Supreme Court did not take up and reverse the Court of Appeal decision, leaving it to appear as apparently good precedent even though it was directly contrary to a prior decision of a higher court. By failing to cite the earlier Supreme Court case, the Court of Appeal opinion appeared valid, and it was only after further research that I ended up discovering the earlier Supreme Court case and realized the apparent invalidity of the Court of Appeal case.

In a situation like that -- where a lower court reaches a decision that is incorrect, and where the lower court's decision is limited to that particular, contradicted issue -- I think that a writ of erasure would be appropriate. There would be no need for the appellate court to issue a new opinion to confirm its old ruling, rather, the appellate court could simply vacate the decision below so that it would not confound future litigants. A writ of erasure could be a simpler means for higher courts to clear up confusion created by lower courts without needing to reinvent the wheel.

I realize that I have described a narrow set of circumstances where a writ of erasure would be appropriate. But even a narrow exception can highlight a problem with a blanket rule. And there may be other situations where circumstances warrant the issuance of a writ of erasure. In these exceptional circumstances, the permissive language of the All Writs Act may end up being sufficient authority to support a writ of erasure. Until then, however, I would recommend that advocates use caution in their choice of words and remedies when arguing in front of Judge Easterbrook.