I continue my blogging of some excerpts from Mayer Brown's 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.