7th Circuit Pro-Tip: You can’t file an amicus in support of rehearing en banc

March 24th, 2014

As I noted in a comment to my post about Judge Posner’s fashion show, I was interested in potentially filing an amicus brief in support of rehearing en banc. Though, 2 minutes of research quickly disabused me of that idea. In the 7th Circuit, as construed by then-Chief Judge Easterbrook (in chambers), there is no such thing as an amicus in support of rehearing en banc.

Rule 29(e) of the Federal Rules of Appellate Procedure governs the time for filing of Amicus Curiae.

(e) Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer.

In case you thought that gave you 7 days from the filing of the petition for rehearing en banc, you were wrong. Chief Judge Easterbrook (in chambers) reads the rule differently. It’s 7 days from the merits brief!

The problem with relying on Rule 29(e) is that the brief must be filed within 7 days of “the principal brief of the party being supported”. The “principal brief” of Thomas Fry, the party being supported, was filed on April 10, 2008, more than a year before the potential amici tendered their brief. A “principal brief” is the opening brief on the merits, as opposed to a reply brief or another variety of brief. A petition for rehearing en banc is not a “brief” of any kind; further briefing may follow a grant of rehearing, but the petition for rehearing is a request for discretionary relief rather than a brief. Rule 29, which covers amicus briefs, appears in a sequence of rules (28 through 32.1) that deals with the contents, form, and timing of merits briefs; Rule 34 deals with oral argument; and Rules 35 through 41 with post-decision matters. It would be unsound to treat the phrase “principal brief” in Rule 29(e) to refer to a document other than the opening brief on the merits.

In other words, Chief Judge Easterbrook reads the rule to eliminate the ability to submit an amicus in support of rehearing anytime, even if both parties consent to its filing. Per se, it will *always* be untimely. That is a very narrow interpretation of the rule.

In general, I’ve heard that the 7th Circuit is quite hostile to amici. The leading 7th Circuit decision on point is from Judge Posner (in chambers).

No matter who a would-be amicus curiae is, therefore, the criterion for deciding whether to permit the filing of an amicus brief should be the same: whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs. The criterion is more likely to be satisfied in a case in which a party is inadequately represented; or in which the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or in which the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide.National Organization for Women, Inc. v. Scheidler, supra, 223 F.3d at 616-17Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir.1997) (chambers opinion); Georgia v. Ashcroft, 195 F.Supp.2d 25, 32 (D.D.C.2002)

The other cases cited are also (no surprise) Posner opinions.

You’ve been warned.