Posted by Eugene Volokh:
Amicus Briefs Supporting Petitions for Discretionary Review:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248195377
I continue my blogging of some excerpts from Mayer Brown's [1]Federal
Appellate Practice treatise. Today's item is also about amicus briefs,
and in particular amicus briefs supporting petitions for discretionary
review (such as petitions for certiorari) rather than amicus briefs on
the merits:
In the Supreme Court, amicus briefs likely have a greater impact at
the petition stage than at the merits stage. A recent study found
that a �paid� (as opposed to in forma pauperis) certiorari
petition�s chances of being granted rose from 2 percent with no
amicus support, to approximately 20 percent with the support of one
amicus, to more than 50 percent with the support of at least four
amici. There is no direct counterpart to the certiorari stage in
courts of appeals, whose jurisdiction is for the most part
mandatory, but there is an obvious indirect counterpart: the stage
at which a party petitions for hearing or rehearing en banc. Just
as the Supreme Court exercises discretion in deciding whether to
grant certiorari and hear a case on the merits, an en banc court of
appeals exercises discretion in deciding whether to grant hearing
or rehearing en banc and allow the case to be heard or reheard by
the entire court.
The exercise of that discretion is guided by similar considerations
in each instance. One such consideration is the importance of the
question presented. Because amici can �communicate the importance
of the case by their very presence,� and can communicate it even
more effectively by filing persuasive briefs, there is reason to
think that amicus briefs will significantly increase the likelihood
of a grant of hearing or rehearing en banc in a court of appeals.
In fact, however, amicus filings supporting an en banc petition
�are apparently rare.� There are likely a number of reasons for
this. First, by local rule, some circuits restrict or prohibit
unsolicited amicus filings at the en banc petition stage. Second, a
petition for rehearing en banc must ordinarily be filed within 14
days of the entry of judgment, and that time frame may effectively
preclude amicus participation in many cases. Third, a potential
amicus may not wish to invest the necessary resources if the
circuit that would hear or rehear the case en banc is one to which
the potential amicus has little or no connection and thus one whose
decision will have relatively little effect on its interests.
When those limiting circumstances are not present, however, filing
an amicus brief in support of en banc consideration may turn out to
be a wise investment of resources. That is particularly so because
one can never count on further review by the Supreme Court, which
in recent years has granted certiorari in fewer than 80 cases per
term. One should never (or almost never) file an amicus brief in
opposition to an en banc petition, however, because it will have
the counterproductive effect of making the case appear more
important than it otherwise would.
What is true of en banc petitions is equally true of other requests
for discretionary review in a court of appeals. See generally
Chapter 2, discussing appeals within the discretion of the court of
appeals. Apart from its discretion to hear or rehear any case en
banc, there are three types of interlocutory orders over which a
court of appeals has discretionary jurisdiction: a grant or denial
of class certification; a grant or denial of a motion to remand a
class action to the state court from which it was removed; and an
order in a civil action certified by the district court to involve
a controlling question of law as to which there is substantial
ground for difference of opinion and whose immediate resolution may
materially advance the ultimate termination of the litigation. As
with a petition for en banc hearing or rehearing, the filing of one
or more amicus briefs in support of a petition for one of these
other forms of discretionary review is likely to increase the
likelihood that the petition will be granted by highlighting the
importance of the question presented in the petition.
Practitioners should be aware, however, that the period for filing
and deciding a petition for permission to appeal is extremely
compressed. A petition for permission to appeal a
class-certification order or an order certified under 28 U.S.C. §
1292(b) must be filed within 10 days of the order�s entry, and a
petition for permission to appeal a class-action remand order must
be filed within 7 days of the order�s entry. An answer in
opposition to any such petition must be filed within 7 days after
the petition is served. And because a petition for permission to
appeal an order of one of these types does not stay proceedings in
the district court, the court of appeals will ordinarily act on the
petition promptly. In part for these reasons, amicus filings in
support of petitions for permission to appeal are even rarer than
amicus filings in support of petitions for en banc review. For the
same reasons, if an amicus brief in support of a petition for
permission to appeal is being contemplated, one should plan on
filing the brief as soon as possible.
Neither the Federal Rules of Appellate Procedure nor the circuits�
local rules specifically address the filing of amicus briefs in
connection with petitions for permission to appeal. Counsel would
therefore be well advised to keep the brief very short and to file
a motion for leave to file even if the parties consent. As
discussed above, at least two circuits specify such requirements
for submitting amicus briefs in support of en banc petitions.
References
1.
http://storefront.bnabooks.com/epages/bnastore.sf/en_US/?ObjectPath=/Shops/bnastore/Products/1669
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