Warshak Files Reponse; Sixth Circuit Rejects All Amicus Submissions:
Here's an update on Warshak v. United States, the Sixth Circuit case on e-mail privacy that I have blogged a lot about. There are two significant developments in the case. The first development is that counsel for Warshak filed his opposition to the petition for rehearing last week. You can read that brief here. I think it's quite weak for all the reasons I have explained in my amicus brief, as well as in my many posts on these issues, but at least we know what arguments Warshak has to make.
The second development is that the Sixth Circuit rejected all three amicus briefs submitted for or against rehearing. On Wednesday, both the Electronic Frontier Foundation (joined by CDT and the ACLU of Ohio) and a group of law professors tried to file amicus briefs opposing the petition for rehearing. Here is EFF's submission; here's the lawprof brief. Yesterday we learned that the Sixth Circuit is refusing all three briefs; the EFF brief, the lawprof group brief, and my own brief.
Why the Sixth Circuit rejected all the amicus briefs remains somewhat unclear, but there is reason to think the court interpreted Fed R. App. Pro. 40(a)(3) to disallow amicus briefs at the rehearing stage. That Rule states that "[u]nless the court requests, no answer to a petition for panel rehearing is permitted." In this case, the court requested an answer to the petition for rehearing: Warshak was ordered to respond. However, there's some reason to think that the court is interpreting amicus briefs as "answers" and reading the Rule to mean that no amicus briefs are permitted with respect to any rehearing issues unless the court specifically invites that particular brief. Before I filed my brief I had reason to think this wasn't the Sixth Circuit's approach to the rule, but as best I can tell that is now the court's interpretation. (Some circuits have local rules that specifically address this issue; the Sixth Circuit does not.)
Obviously this is somewhat frustrating in light of the time and resources to write the brief and submit it, as well as in light of the strong public interest in the judges having a better understanding of this case. In any event, I hope the Sixth Circuit appreciates the substantial and important problems with the panel decision and grants the petition for rehearing. And on the bright side, I understand the $200 I spent to join the Sixth Circuit bar will bring me a lovely certificate suitable for framing.
The second development is that the Sixth Circuit rejected all three amicus briefs submitted for or against rehearing. On Wednesday, both the Electronic Frontier Foundation (joined by CDT and the ACLU of Ohio) and a group of law professors tried to file amicus briefs opposing the petition for rehearing. Here is EFF's submission; here's the lawprof brief. Yesterday we learned that the Sixth Circuit is refusing all three briefs; the EFF brief, the lawprof group brief, and my own brief.
Why the Sixth Circuit rejected all the amicus briefs remains somewhat unclear, but there is reason to think the court interpreted Fed R. App. Pro. 40(a)(3) to disallow amicus briefs at the rehearing stage. That Rule states that "[u]nless the court requests, no answer to a petition for panel rehearing is permitted." In this case, the court requested an answer to the petition for rehearing: Warshak was ordered to respond. However, there's some reason to think that the court is interpreting amicus briefs as "answers" and reading the Rule to mean that no amicus briefs are permitted with respect to any rehearing issues unless the court specifically invites that particular brief. Before I filed my brief I had reason to think this wasn't the Sixth Circuit's approach to the rule, but as best I can tell that is now the court's interpretation. (Some circuits have local rules that specifically address this issue; the Sixth Circuit does not.)
Obviously this is somewhat frustrating in light of the time and resources to write the brief and submit it, as well as in light of the strong public interest in the judges having a better understanding of this case. In any event, I hope the Sixth Circuit appreciates the substantial and important problems with the panel decision and grants the petition for rehearing. And on the bright side, I understand the $200 I spent to join the Sixth Circuit bar will bring me a lovely certificate suitable for framing.
All Related Posts (on one page) | Some Related Posts:
- Sixth Circuit Grants Petition for Rehearing En Banc in Warshak v. United States:
- Warshak Files Reponse; Sixth Circuit Rejects All Amicus Submissions:
- My Amicus Brief in Warshak v. United States:...
- A Series of Posts on Warshak v. United States, the E-Mail Privacy Case:
- Sixth Circuit Blockbuster on E-Mail Privacy:
- Warshak v. United States:
Well, that and the "I submitted an Amicus Brief to the Sixth Circuit and all I got was this lousy T-Shirt" T-Shirt. I'd hope you cold at least have a flammable rejection letter.
The certificate should burn nicely, maybe with colored flames as the inks combust.
Err, I meant "frameable." I really need to pay more attention to my spellchecker's suggestions. I think it may have its own agenda...
When Jennifer Granick and I wrote our amici brief a few months ago in U.S. v. Andrus, I noticed that the Tenth Circuit's local rule was to a similar effect. I think I annoyed Jennifer by constantly referring to our brief as a "brief in support of the merits" not a "brief in support of rehearing."
It sounds like the Sixth Circuit doesn't have a similar local rule.
But I'm guessing some of the law clerks on the Sixth Circuit are VC readers (or at the very least, vanity-google their big cases), and I'm willing to bet that some of them have looked at your brief...
(Of course, parties can waive issues by not raising them, but assuming the issue itself is in play, it shouldn't matter who makes the argument.)
I agree, and this is another reason why the briefs should be formally filed. The Internet allows non-parties (and even parties) to effectively file stealth briefs by posting them where judges and law clerks can find them. It's better just to file them openly with the clerk. The parties and judges can respond to them or ignore them as the parties and judges deem appropriate.
True enough. But judges are under no obligation to read an amicus brief that they find unhelpful.
Yes, the judges don't have to read them, but that doesn't deter future filings.
Posner's ruling isn't necessarily correct-- there are certainly countervailing interests here-- but it isn't necessarily wrong either, because in a world where so many unhelpful briefs are filed just so this or that organization can brag in their fundraising letters of their involvement in the case, there's just going to be a proliferation of repetitive arguments in every high profile case. Whereas if those organizations know that they are likely going to get a denial order from the Court and then they won't be able to tout the filing in fundraising, they may not bother to file unless they really have something new and important to tell the Court.
Rejecting only unhelpful briefs might be an option, but it's more work for the court than just letting them sit unread in the clerk's office. Plus, here, the court rejected all of the amicus briefs regardless of their value.
I can understand why they don't want to have an open amicus policy when deciding whether to grant a rehearing.
If nothing else, this issue isn't going away. The Warshak case ensures that. I also agree that no doubt many Sixth Circuiters at various levels read this site and have come across your brief. All is not for naught in the battle of ideas.